Datasets:

---

jhu-clsp

/

CLERC

like 3

Follow

Center for Language and Speech Processing @ JHU 70

[ { "docid": "23699114", "title": "", "text": "183 (5th Cir.2002). . Id. (internal quotations omitted). . United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir.1993). . United States v. Simkanin, 420 F.3d 397, 410 (5th Cir.2005). . See, e.g., Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (applying the Court’s definition of willfulness \"unless the text of the statute dictates a different result”). . See, e.g., Staples v. United States, 511 U.S. 600, 618-19, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (defendant need only be aware that he has engaged in conduct that meets the statutory definition; he need not know of the statute or his violation of the statute). .See, e.g., Bryan, 524 U.S. at 191 nn. 12-13, 191-92, 118 S.Ct. 1939 (discussing multiple interpretations of criminal willfulness as meaning \"not merely voluntarily, but with a bad purpose,” \"a thing done without ground for believing it is lawful,” or \"[d]oing or omitting to do a thing knowingly and willfully ... not only [with] a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it” (internal citations and quotations omitted)). . Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). . Stichting Ter Behartiging Van de Belangen Van Oudaarideelhouders In Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 327 F.3d 173, 181 (2d Cir.2003) [hereinafter Stichting], . Biyan, 524 U.S. at 193, 118 S.Ct. 1939. . Staples, 511 U.S. at 619, 114 S.Ct. 1793 (\"[T]he Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act”). . Id. at 620, 114 S.Ct. 1793. The Court did not concern itself with the question of knowledge of the law, but rather with wrongfully convicting \"gun owners who were wholly ignorant of the offending characteristics of their weapons .... ” Id. (emphasis added); see also Rogers v. United States, 522 U.S. 252, 254-55, 118 S.Ct 673, 139 L.Ed.2d 686 (1998) (plurality opinion) (\"It is not ... necessary to prove that the defendant knew" } ]

[ { "docid": "12470568", "title": "", "text": "a false statement to the FEC, the prosecution must prove that “defendant knew of the [political party] treasurers’ reporting obligations, that he attempted to frustrate those obligations, and that he knew his conduct was unlawful.” See United States v. Curran, 20 F.3d at 569. These are elements of the offense to be proved beyond a reasonable doubt at trial, and the jury must be so instructed. Id. at 570; see Ratzlaf v. U.S., 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (in context of banking laws, jury must-find that defendant knew of regulatory reporting requirement in order to find that defendant acted willfully); but see United States v. Gabriel, 125 F.3d 89, 103 (2d Cir.1997) (refusing to adopt Curran definí tion of willfulness in Section 2(b) prosecution). While in most criminal prosecutions a showing of willfulness does not require proof that the defendant was aware that his conduct violated a particular statute or regulation, the Court is persuaded that this case falls comfortably within an exception to that general rule. See Bryan v. United States, - U.S. -,- & nn. 18, 20, 118 S.Ct. 1939, 1946-47 & nn. 18, 20, 141 L.Ed.2d 197 (1998) (where “highly technical” statutes such as Internal Revenue Code and banking regulatory scheme at issue in Ratzlaf present “danger of ensnaring individuals engaged in apparently innocent conduct,” showing of willfulness requires proof that defendant had knowledge of specific provision of statute allegedly violated); see also id. 118 S.Ct. at 1951 (Sealia, J., dissenting); Ratzlaf v. US., 510 U.S. at 149, 114 S.Ct. 655. The Court’s conclusion is compelled, first, by the overlay of the Section 2(b) willfulness requirement on the Section 1001 willfulness requirement and, second, by Congress’ expressed concern that the complexity and nature of federal election law might ensnare innocent individuals unless the government is required to prove a high standard of intent. Section 2(b) and Section 1001 both require the government to prove willful conduct: For purposes of Section 1001, the government must prove that a criminal defendant knew that the statement at issue was false and that he or she" }, { "docid": "19644213", "title": "", "text": "state. As the Court correctly explains, the word \"threat\" does not itself contain a mens rearequirement. See ante,at 2008 - 2009. But because we read criminal statutes \"in light of the background rules of the common law, in which the requirement of some mens reafor a crime is firmly embedded,\" we require \"some indication of congressional intent, express or implied, ... to dispense with mens reaas an element of a crime.\" Staples v. United States,511 U.S. 600, 605-606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)(citation omitted). Absent such indicia, we ordinarily apply the \"presumption in favor of scienter\" to require only \"proof of general intent-that is, that the defendant [must] posses[s] knowledge with respect to the actus reusof the crime.\" Carter v. United States,530 U.S. 255, 268, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). Under this \"conventional mens reaelement,\" \"the defendant [must] know the facts that make his conduct illegal,\" Staples, supra,at 605, 114 S.Ct. 1793, but he need not know thatthose facts make his conduct illegal. It has long been settled that \"the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.\" Bryan v. United States,524 U.S. 184, 192, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998)(internal quotation marks omitted). For instance, in Posters 'N' Things, Ltd. v. United States,511 U.S. 513, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to \" 'make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,' \" id.,at 516, 114 S.Ct. 1747(quoting 21 U.S.C. § 857(a)(1) (1988 ed.)). In applying the presumption in favor of scienter, the Court concluded that \"although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are 'drug paraphernalia' within the meaning of the statute.\" 511 U.S., at 524, 114 S.Ct. 1747. Our default rule in favor of general intent applies with full force to" }, { "docid": "23265860", "title": "", "text": "The Supreme Court stated that \"the traditional rule that ignorance of the law is no excuse” does not apply only in cases involving highly technical statutes that criminalize otherwise \"innocent conduct.” Bryan v. United States, 524 U.S. 184, 194-96, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998); see also Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); Cheek v. United States, 498 U.S. 192, 199-200, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). Although wire fraud is a specific intent crime, it would not fall into this narrow exception to the general rule. See Kay, 513 F.3d at 447-51 (describing narrow exception to traditional rule that ignorance of the law is no excuse). Further, to the extent that the Defendants-Appellants argue that this instruction gave the jury the impression that it could not acquit, even if it found that the Defendants-Appellants believed they were giving accurate answers to the publications, the instruction on specific intent to defraud made clear to the jury that it could not convict unless it found a \"conscious knowing intent to defraud.” See United States v. Cavin, 39 F.3d 1299, 1310 (5th Cir.1994) (a finding of intent to defraud and good faith are mutually exclusive). Taken in context with the rest of the instructions, and the remainder of the note, we do not think that the statement regarding \"ignorance of the law” was in error. . Although Global-Tech was a civil case, the standard seems to apply equally to criminal deliberate ignorance cases. See United. States v. Ferguson, 676 F.3d 260, 277 n. 16 (2d Cir.2011) (applying standard in criminal case and noting slight differences in terminology); United States v. Butler, 646 F.3d 1038, 1041 (8th Cir.2011) (same). . Although obviously not dispositive, our decision in Valencia has been interpreted by other courts as only requiring knowledge as to the first two elements of the offense. See, e.g., Atha, 420 F.Supp.2d at 1380; CFTC v. Johnson, 408 F.Supp.2d at 267. This Court also adopted that interpretation in Futch, 278 Fed.Appx. at 391, although that is an unpublished and non-precedential decision. ." }, { "docid": "4071285", "title": "", "text": "holding in light of the Supreme Court’s decisions in Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), and Bryan v. United States, — U.S. -, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). In Ratzlaf, the Supreme Court held that the “willfulness” element of the antistructuring provision of the Money Laundering Control Act of 1986, 31 U.S.C. § 5324, required a showing that the defendant acted with knowledge that his conduct was unlawful. See 510 U.S. at 549. At issue in Bryan was the “willfulness” element of 18 U.S.C. § 922(a)(1)(A), as amended by the Firearms Owners’ Protection Act in 1986. In its discussion, the Court noted that “as a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ In other words, in order to establish a “willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Bryan, — U.S. at -, 118 S.Ct. at 1945 (emphasis supplied; footnote and internal quotation marks omitted). We do not agree that these decisions require a revision of our longstanding interpretation of the “willfulness” element of Section 186. First, neither Ratzlaf nor Bryan disturbed the well-settled proposition that “willfully” is “a word of many meanings whose construction is often dependent on the context in which it appears.” Bryan, — U.S. at - - -, 118 S.Ct. at 1944-45 (internal quotation marks omitted); see also Ratzlaf, 510 U.S. at 141, 114 S.Ct. 655 (same). And we, along with the majority of other Circuits to have considered the issue, have consistently held that, in the context of Section 186, “willfully” requires only a finding of general intent. See United States v. Phillips, 19 F.3d 1565, 1581-82 (11th Cir.1994) .(decided after Ratzlaf), cert. denied 514 U.S. 1003, 115 S.Ct. 1312, 131 L.Ed.2d 194 (1995); United States v. Bloch, 696 F.2d 1213, 1216 (9th Cir.1982); United States v. Pecora, 484 F.2d 1289, 1294 (3d Cir.1973); United States v. Carter, 311 F.2d 934, 943 (6th Cir.), cert. denied, 373 U.S. 915, 83 S.Ct. 1301," }, { "docid": "1382667", "title": "", "text": "This question is ultimately one of statutory interpretation, since “determining the mental state required for commission of a federal crime requires ... inference of the intent of Congress.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (internal quotation marks omitted). Our interpretation of the AECA is guided by the Supreme Court’s decision in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). The Bryan Court interpreted the Firearm Owners’ Protection Act (FOPA), Pub.L. 99-308, 100 Stat. 449 (1986) (codified at 18 U.S.C. §§ 921-929), which established a willfulness requirement for certain violations of prohibitions against dealing in firearms without a license under 18 U.S.C. § 922. See 18 U.S.C. § 924(a)(1)(D). Bryan held that, “to establish a ‘willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Bryan, 524 U.S. at 191-92, 118 S.Ct. 1939 (internal quotation marks omitted). It rejected the defendant’s argument that the government also had to prove that he knew of the federal licensing requirement, holding that, to establish willfulness, “knowledge that the conduct is unlawful is all that is required.” Id. at 196, 118 S.Ct. 1939. In interpreting FOPA, Bryan distinguished statutes where the Court had read “willfulness” as requiring knowledge of the specific criminal prohibition at issue. The Court observed that these cases — Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), and Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) — addressed “highly technical statutes” involving taxes and currency transactions that “presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Bryan, 524 U.S. at 194, 118 S.Ct. 1939. By contrast, the statutory scheme amended by FOPA to “protect law-abiding citizens with respect to the acquisition, possession, or use of firearms for lawful purposes,” id. at 187-88, 118 S.Ct. 1939, did not present comparable risks of criminalizing otherwise-innocent behavior. Furthermore, this danger was plainly absent on the facts of the case because, as here, the factfinder “found that" }, { "docid": "3391529", "title": "", "text": "5322(a), must mean something more than having the “purpose of evading” federal reporting requirements — also required by statute, see 31 U.S.C. § 5324 — in order to be more than mere surplusage. Ratzlaf, 510 U.S. at 140-41, 114 S.Ct. 655. In contrast, nothing in the language or structure of 18 U.S.C. § 1001 suggests that “willfully” requires proof that a defendant knew his conduct was a crime, and § 1001 does not. contain any “purpose” requirement that would be rendered superfluous by the Government’s interpretation. Accordingly, several courts of appeals have properly rejected an attempt to apply Rat-zlaf to the term “willfully” as used in 18 U.S.C. § 1001. See United States v. Hsia, 176 F.3d 517, 522 (D.C.Cir.1999); United States v. Daughtry, 48 F.3d 829, 831-32 (4th Cir.), vacated on other grounds, 516 U.S. 984, 116 S.Ct. 510, 133 L.Ed.2d 419 (1995); United States v. Rodriguez-Rios, 14 F.3d 1040, 1048 n. 21 (5th Cir.1994) (en banc). In contrast, we are not aware of any appellate court that has held that “willfully” in § 1001 — a term that has long been part of a venerable statute, see United States v. Cohn, 270 U.S: 339, 341 n. 1, 46 S.Ct. 251, 70 L.Ed. 616 (1926) — requires proof that a defendant knew that his conduct was criminal. The Supreme Court likewise suggested in Bryan v. United States, 524 U.S. 184, 191-95, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), that the holding, of Ratzlaf should be confined to the anti-structuring statute at issue in that case. In Bryan, the Court addressed the term “willfully” as used in 18 U.S.C. § 924(a)(1), which forbids, among other things, dealing in firearms without a federal license. See 18 U.S.C. § 922(a)(1)(A). Reiterating that “willfully” is “ ‘a word of many meanings’ whose construction is often dependent on the context in which- it appears,” 524 U.S. at 191, 118 S.Ct. 1939 (quoting Spies, 317 U.S. at 497, 63 S.Ct. 364), the Court then explained that, with the exception of Ratzlaf and cases involving willful violations of tax laws, “willfully” does not require specific knowledge" }, { "docid": "20816556", "title": "", "text": "in law for aiding the jury in reaching its decision.” United States v. Burchard, 580 F.3d 341, 345 (6th Cir.2009); see also United States v. Ross, 502 F.3d 521, 527 (6th Cir.2007) (“No single provision of the jury charge may be viewed in isolation; rather, the charge must be considered as a whole.”). A judgment stemming from a jury verdict should be reversed if the instruction, viewed as a whole, was prejudicial, or if the instructions confused or misled the jury about the correct application of the law. Roth, 628 F.3d at 833; see also Burchard, 580 F.3d at 345 (citing United States v. Robinson, 547 F.3d 632, 637 (6th Cir.2008)). A violation of § 1201 is only a criminal offense under § 1204(a) if it is committed “willfully” and for commercial or private financial gain. The term “willfully,” when used in a criminal statute, generally refers to conduct that involves “a bad purpose,” or “careless disregard [for] whether a person has the right so to act.” Bryan v. United States, 524 U.S. 184, 191 n. 12, 13, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998); the term marks a distinction between deliberate criminal conduct and unwitting or oblivious conduct which does not indicate a culpable state of mind. Id. at 191, 118 S.Ct. 1939. In order to establish a willful violation of a statute, “the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Id. at 192, 118 S.Ct. 1939 (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)); accord Dixon v. United States, 548 U.S. 1, 5, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (“[T]he term willfully ... requires a defendant to have acted with knowledge that his conduct was unlawful.”); United States v. Roth, 628 F.3d 827, 834 (6th Cir.2011) (“[I]n criminal cases, in order to establish a willful violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.”). Therefore, at trial, the Government was required to prove that Reichert knew that it was unlawful for him" }, { "docid": "19282792", "title": "", "text": "banc). Accordingly, the defendants are not entitled to a new trial on this basis. 3. Instruction Nos. 36 and 37 The defendants renew their contention that Instruction Nos. 36 and 37, the instructions defining the “willfulness” element of the Anti-Kickback Act and the proper means by which the jury could infer willfulness, were improper because the court failed to instruct pursuant to Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) and Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). Under the willfulness element of the statute at issue in Cheek, a defendant cannot be convicted of willful violation of the tax laws unless he or she is aware of the specific provision of the tax code that he or she was charged with violating. Cheek, 498 U.S. at 201, 111 S.Ct. 604. Similarly, under the willfulness element of the statute at issue in Ratzlaf, a defendant cannot be convicted of willful violation of currency structuring laws unless the defendant knows that the structuring of cash transactions to avoid statutory reporting requirements is unlawful. Ratzlaf, 510 U.S. at 138, 114 S.Ct. 655. The defendants contend that the Anti-Kickback Act requires the government to make an equivalent showing of intent. The court has previously rejected the defendants’ arguments on this point and now denies the defendants’ motions because they argue for a result that the Supreme Court squarely rejected in a recent decision. In Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 1945-47, 141 L.Ed.2d 197 (1998), the Supreme Court considered the appropriate definition of the term “willfully” in connection with 18 U.S.C. § 924(a)(1)(D), a statute making anyone who willfully violates, inter alia, 18 U.S.C. § 922(a)(1)(A), which forbids dealing in firearms without a federal license, subject to felony charges. Bryan distinguished Cheek and Ratzlaf by noting: Both ... cases ... involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that [the statutes at issue in Cheek and Ratzlaf ] “carv[e] out an exception to" }, { "docid": "2810623", "title": "", "text": "1939. The Court stated that' satisfaction of the “knowingly” standard in § 924(a)(l)(A)-(C) only requires “proof of knowledge of the facts that constitute the offense.” Id. at 193, 118 S.Ct. 1939. To establish that a defendant acted “willfully” under §’ 924(a)(1)(D), the jury had to find that “the defendant acted with an evil-meaning mind, th.at is to say, that he acted with knowledge that his conduct was unlawful.” Id. The Court’s reading of “willfully” to require a stricter mens rea standard than “knowingly” did not, however, establish a clear justification for interpreting the two terms - differently. Id. at 193, 118 S.Ct. 1939. The significance of Cheek, Ratzlaf, and Bryan, in turn, lies in their atypicality. The Supreme Court’s interpretations of “willfully” in Cheek, Ratzlaf, and Bryan represent a departure from the Supreme Court’s seemingly principal approach to interpreting the term' “willful” in criminal statutes. As reflected in Cheek and Rat-zlaf, the Court has typically read “willfully” to require a purpose to violate a particular law only in those isolated circumstances where the obscurity or complexity of that particular criminal statute may prevent individuals from realizing that seemingly innocent acts are, in fact, criminal. In turn, the phrase “willfully” should not be interpreted to create unwarranted exceptions to the fundamental canon of criminal law that ignorance of the law is no excuse. The Supreme Court has consistently interpreted criminal statutes to achieve a fine balance between protecting innocent conduct and penalizing wrongful conduct. See Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (“The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’ ”) (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)); X-Citement Video, 513 U.S. at 71-73, 115 S.Ct. 464 (holding that conviction under statute prohibiting interstate commerce in child pornography requires proof of defendant’s knowledge that children depicted are minors and stating that “the age of the performers is the crucial element separating" }, { "docid": "23372400", "title": "", "text": "United States to negative any exemption or exception set forth in [the CSA] in any ... indictment.” 21 U.S.C. § 885(a)(1). In United States v. Steele, 147 F.3d 1316 (11th Cir.1998) (en banc), we recognized that as a result of this statutory directive, an indictment is not insufficient if it does not include the legal assertion that the distribution of controlled substances occurred outside of the \"usual course of professional practice.” Id. at 1319-20. From this holding, it follows that neither is an indictment insufficient if it does not contain factual allegations suggesting that a distribution occurred outside of the \"usual course of professional practice.” . \"As a general matter, when used in the criminal context, a 'willful' act is one undertaken with a 'bad purpose.’ ” Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 1945, 141 L.Ed.2d 197 (1998). In a case involving willfulness, the government must prove that \"the defendant acted with knowledge that his conduct was unlawful.\" Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 657, 126 L.Ed.2d 615 (1994)); see also United States v. Dominguez, 661 F.3d 1051, 1072 (11th Cir.2011); United States v. Haun, 494 F.3d 1006, 1009 (11th Cir.2007). By contrast, the term \"knowingly” means that \"the act was performed voluntarily and intentionally, and not because of a mistake or accident.” United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir.2002). This state of mind \"merely requires proof of knowledge of the facts that constitute the offense,” not knowledge of the unlawfulness of the action. Bryan, 524 U.S. at 193, 118 S.Ct. at 1946. The Supreme Court has recognized that under some statutes, \"willfulness” may entail something more than just a bad purpose or the general awareness that the action is unlawful. Specifically, in the context of “highly technical statutes that present[ ] the danger of ensnaring individuals engaged in apparently innocent conduct”—most notably, the Internal Revenue Code—the government must show that \"the defendant was aware of the specific provision ... that he was charged with violating.” Id. at 194, 118 S.Ct. at 1946-47 (citing Cheek" }, { "docid": "8945777", "title": "", "text": "were unlawful. Thus, for example, to prove a defendant guilty of securities fraud or mail fraud based on making a false or misleading representation, the government must prove beyond a reasonable doubt that the defendant knew the representation was false or was made with reckless indifference to its truth or falsity, but it need not prove that in making the representation the defendant knew he was committing securities fraud, mail fraud, or any other criminal offense. In these statutes, willfully has the same meaning as knowingly. Defendant argues that the court erred by instructing that “willfully” and “knowingly” mean the same thing, and by instructing that the government did not have to prove that defendant knew that his conduct was unlawful. He argues that the “willful” instruction runs afoul of Bryan v. United States, 524 U.S. 184, 191-92, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), in which the Supreme Court stated: As a general matter, when used in the criminal context, a “willful” act is one undertaken with a “bad purpose.” In other words, in order to establish a “willful” violation of a statute, “the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). (Footnote omitted.) Because 15 U.S.C. § 78ff requires a showing of “willfulness,” Defendant argues, it was error to instruct the jury that Defendant could be convicted even if the jury found that he did not know that his conduct was unlawful. As an initial matter, we note that the district court did err in this instruction, although not in the way that Defendant claims. As quoted above, the district court instructed that “[e]ach of the crimes charged in the indictment requires proof beyond a reasonable doubt that the defendant acted knowingly.” (Emphasis added.) However, § 78ff(a) states that a person who “willfully” violates any provision of the chapter or any rule or regulation promulgated thereunder is subject to criminal penalty. 15 U.S.C. § 78ff. “Knowingly” is not a required element. Id. “Knowingly” is an element for" }, { "docid": "3391530", "title": "", "text": "1001 — a term that has long been part of a venerable statute, see United States v. Cohn, 270 U.S: 339, 341 n. 1, 46 S.Ct. 251, 70 L.Ed. 616 (1926) — requires proof that a defendant knew that his conduct was criminal. The Supreme Court likewise suggested in Bryan v. United States, 524 U.S. 184, 191-95, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), that the holding, of Ratzlaf should be confined to the anti-structuring statute at issue in that case. In Bryan, the Court addressed the term “willfully” as used in 18 U.S.C. § 924(a)(1), which forbids, among other things, dealing in firearms without a federal license. See 18 U.S.C. § 922(a)(1)(A). Reiterating that “willfully” is “ ‘a word of many meanings’ whose construction is often dependent on the context in which- it appears,” 524 U.S. at 191, 118 S.Ct. 1939 (quoting Spies, 317 U.S. at 497, 63 S.Ct. 364), the Court then explained that, with the exception of Ratzlaf and cases involving willful violations of tax laws, “willfully” does not require specific knowledge that a defendant’s conduct is criminal: Both the tax cases and Ratzlaf involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that these statutes “carv[e] out an exception to the traditional rule” that ignorance of the law is no excuse and require that the defendant have knowledge of the law. Id. at 194-95, 118 S.Ct. 1939 (quoting Cheek v. United States, 498 U.S. 192, 200, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)) (alteration in original). Bryan approved the jury instructions given by the trial judge in that case, which read: A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids. Id. at 190, 118 S.Ct. 1939. The Court" }, { "docid": "10704113", "title": "", "text": "it appears.” Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (internal quotation marks omitted). The Supreme Court’s jurisprudence in this area has evolved over time, but now appears to establish two standards, one higher than the other, for “willfulness” in the criminal context. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 58 n. 9, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007); see, e.g., Cheek, 498 U.S. at 200-07, 111 S.Ct. 604; Ratzlaf, 510 U.S. at 135, 114 S.Ct. 655; Bryan, 524 U.S. at 191, 118 S.Ct. 1939. In the context of criminal statutes, the word “willful” generally indicates a requirement of specific intent. United States v. Henderson, 243 F.3d 1168, 1173 (9th Cir.2001). “As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ ” Bryan, 524 U.S. at 191, 118 S.Ct. 1939. Said otherwise, “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ ” Id. at 191-92, 118 S.Ct. 1939 (quoting Ratzlaf, 510 U.S. at 137, 114 S.Ct. 655). But in a context involving “highly technical statutes that present[ ] the danger of ensnaring individuals engaged in apparently innocent conduct,” id. at 194, 118 S.Ct. 1939, the Supreme Court has suggested that “willfulness” requires the government to prove that the defendant acted with “specific intent to violate a known legal duty,” Safeco, 551 U.S. at 58, 127 S.Ct. 2201 n. 9. The Supreme Court’s cases do not make clear the practical effect, if any, of this heightened standard. Bryan and Safeco both identify Cheek and Ratzlaf as examples of cases where the heightened burden of proof applied. See Bryan, 524 U.S. at 184, 118 S.Ct. 1939; Safeco, 551 U.S. at 58 n. 9, 127 S.Ct. 2201. Neither of these cases, however, required the government to prove the defendant’s knowledge of a specific provision of law. In Cheek, the Supreme Court held that “willfulness,” as used in the criminal provisions of the tax code, required" }, { "docid": "2810619", "title": "", "text": "this duty, and that he voluntarily and intentionally violated that duty.” Id. at 201, 111 S.Ct. 604. The Court adopted similar reasoning in Ratzlaf. Defendant Ratzlaf was charged with structuring cash deposits to financial institutions in violation of 31 U.S.C. §§ 5322(a) and 5324(a)(3). 510 U.S. at 137, 114 S.Ct. 655. Ratzlaf held that to convict the defendant, the government had to prove that he knew that the currency structuring in which he was engaged was illegal. Id. at 149, 114 S.Ct. 655. Observing that “currency structuring is not inevitably nefarious” and is often undertaken for legal purposes, the Court held that a person who structures currency transactions must demonstrate specific intent to violate the currency structuring provision in order to be convicted under it. Id. at 144-46, 114 S.Ct. 655. In Bryan v. United States, the Supreme Court declined to apply the stricter interpretation of “willfully” (established by Cheek and Ratzlaf) to create additional exceptions to the criminal law maxim that ignorance of the law is no defense to crime, but nevertheless still required the defendant to possess some knowledge of the illegality of his or her conduct. 524 U.S. 184, 195-96, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). The Bryan petitioner challenged his convictions for conspiracy to violate and for violating 18 U.S.C. § 922(a)(1)(A), which forbids any person “except a licensed importer, licensed manufacturer, or a licensed dealer” from trading or transporting firearms in interstate or foreign commerce. See id. at 187 n. 2, 118 S.Ct. 1939. Section 924(a)(1)(D), the criminal penalty provision for § 922(a)(1)(A), imposes punishment on anyone who “willfully violates” the statute. See id. at 187 n. 3, 118 S.Ct. 1939 (internal quotations marks omitted). The Bryan petitioner argued that § 924(a)(l)(D)’s “willfully” language, in the context of § 922(a)(l)(A)’s prohibition, should be read to require not only knowledge that the conduct was unlawful, but also knowledge of the federal licensing requirement. Id. at 189-90, 193-94, 118 S.Ct. 1939. The petitioner based his argument in part on the Cheek and Ratzlaf holdings that a defendant had to demonstrate awareness of the law he was" }, { "docid": "16734072", "title": "", "text": "F.3d 570, 576 (6th Cir.2000)). On the other hand, “[a] district court’s refusal to give a jury instruction is reviewed for abuse of discretion.” H.C. Smith Invs., L.L.C., 377 F.3d at 650 (citing Fisher, 224 F.3d at 576). Roth’s claim that the court instructed the jury on the incorrect definition of willfulness is reviewed de novo. His claim that the court erred by not giving the jury an instruction on ignorance of the law as a separate and complete defense is reviewed for abuse of discretion. 1. Willfulness Neither the Supreme Court nor our Court has defined “willfulness” under section 2778(c). Roth argues that it requires the defendant to intentionally export defense articles or services that he specifically knows are on the Munitions List. The government counters that willfulness under the statute only requires a defendant to know of the general unlawfulness of his conduct, not to know of the specific statutory provision he is violating. “[A] fundamental canon of statutory construction is that ‘when interpreting statutes, the language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.’ ” Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir.2007) (citing United States v. Boucha, 236 F.3d 768, 774 (6th Cir.2001)). Here, the language cannot be our ending point as the Supreme Court has commented that willfulness can be “ ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.” Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (quoting Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)). Generally though, in criminal cases, “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ ” Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). Other circuits have interpreted the willfulness element of section 2778(c) and produced different results. Multiple circuits have interpreted willfulness as" }, { "docid": "19282793", "title": "", "text": "of cash transactions to avoid statutory reporting requirements is unlawful. Ratzlaf, 510 U.S. at 138, 114 S.Ct. 655. The defendants contend that the Anti-Kickback Act requires the government to make an equivalent showing of intent. The court has previously rejected the defendants’ arguments on this point and now denies the defendants’ motions because they argue for a result that the Supreme Court squarely rejected in a recent decision. In Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 1945-47, 141 L.Ed.2d 197 (1998), the Supreme Court considered the appropriate definition of the term “willfully” in connection with 18 U.S.C. § 924(a)(1)(D), a statute making anyone who willfully violates, inter alia, 18 U.S.C. § 922(a)(1)(A), which forbids dealing in firearms without a federal license, subject to felony charges. Bryan distinguished Cheek and Ratzlaf by noting: Both ... cases ... involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that [the statutes at issue in Cheek and Ratzlaf ] “carv[e] out an exception to the traditional rule” that ignorance of the law is no excuse and require that the defendant have knowledge of the law. The danger of convicting individuals engaged in apparently innocent activity that motivated our decisions in [ CheekJ and Ratzlaf is not present here because the jury found that this petitioner knew that his conduct ivas unlawful. Bryan, 118 S.Ct. at 1947 (emphasis added). The situation is the same here. In order to convict any defendant of the crimes charged, the jury was required to find that that defendant “specifically intend[ed] to do something the law forbids, purposely intending to violate the law.” Instruction No. 36; see also United States v. Starks, 157 F.3d 833 (11th Cir.1998) (applying Bryan in Anti-Kickback context and concluding that statute did not require proof that defendant acted with knowledge of the Anti-Kickback Act); see also United States v. Jain, 93 F.3d 436, 440-41 (8th Cir.1996) (pre-Bryan case approving instruction substantially similar to this court’s instruction); United States v. Dashney, 117 F.3d 1197, 1201 (10th Cir. 1997). Thus, to convict," }, { "docid": "2810648", "title": "", "text": "makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws.” . In contrast, the criminal statutory mens rea term \"knowingly” has attained a largely settled interpretation. The use of \"knowingly” in a statutory mens rea provision typically signals that the statute only requires a finding of general intent for conviction. See, e.g., Bryan v. United States, 524 U.S. 184, 192-93, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (stating that the use of \"knowingly” in 18 U.S.C. § 924(a)(1) does not refer to a \"culpable state of mind or to knowledge of the law” but only requires the government to prove the defendant's knowledge of the facts comprising the offense); United States v. Scotti, 47 F.3d 1237, 1245 (2d Cir.1995) (holding that use of \"knowingly” in 18 U.S.C. § 894(a)(1) indicates general, not specific, intent). In turn, the Supreme Court has defined \"general intent” as \"proof of knowledge with respect to the actus reus of the crime.\" Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000); see also United States v. Sewell, 252 F.3d 647, 650 (2d Cir.2001) (stating that for liability to attach under a general intent crime, the defendant must intend to undertake the act required by the crime). . Section 7201 states in relevant part that \"[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony,” while 26 U.S.C. § 7203 states in relevant part that \"[a]ny person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to malte a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax," }, { "docid": "16734073", "title": "", "text": "point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.’ ” Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir.2007) (citing United States v. Boucha, 236 F.3d 768, 774 (6th Cir.2001)). Here, the language cannot be our ending point as the Supreme Court has commented that willfulness can be “ ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.” Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (quoting Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)). Generally though, in criminal cases, “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ ” Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). Other circuits have interpreted the willfulness element of section 2778(c) and produced different results. Multiple circuits have interpreted willfulness as requiring a defendant to know generally that the act of exporting the underlying items is unlawful without requiring that the defendant know the items are on the Munitions List. See United States v. Murphy, 852 F.2d 1, 7 (1st Cir.1988) (holding that willfulness was sufficiently established under section 2778(c) if the defendant “knew he had a legal duty not to export the weapons”); see also United States v. Hsu, 364 F.3d 192, 198 n. 2 (4th Cir.2004) (rejecting the defendants’ argument that “the [jury] instructions as to ‘willfulness’ were deficient because the ‘jury was not instructed that the government had to show that the defendants knew that the KIV-7HS was covered by the Munitions List ... [or that] the device was designed for military use’”); United States v. Tsai, 954 F.2d 155, 160-62 (3d Cir.1992) (affirming court’s instructions that the defendant did not have to have read the Munitions List or know all the details of the law, and holding that the “[district] court did not err in instructing the jury that it could convict" }, { "docid": "10704112", "title": "", "text": "that he was aware of the ITR’s licensing requirements and knew that entering into the Agreement without a license issued by OFAC was unlawful. According to Mousavi, the government must prove his knowledge of the licensing scheme, not just prove that Mousavi knew he was violating the law, because IEEPA and the ITR establish highly technical requirements, which under the reasoning of Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), and Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), require proof of a defendant’s knowing violation of a specific provision of law. Because the government failed to provide any evidence that Mousavi knew of the relevant licensing provision, Mousavi argues, the evidence was insufficient to convict him. 1 Neither this court nor the Supreme Court has previously addressed the definition of “willful” under IEEPA, 50 U.S.C. § 1705(c). As the Supreme Court has noted, the term “willfully” is “a word of many meanings whose construction is often dependent on the context in which it appears.” Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (internal quotation marks omitted). The Supreme Court’s jurisprudence in this area has evolved over time, but now appears to establish two standards, one higher than the other, for “willfulness” in the criminal context. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 58 n. 9, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007); see, e.g., Cheek, 498 U.S. at 200-07, 111 S.Ct. 604; Ratzlaf, 510 U.S. at 135, 114 S.Ct. 655; Bryan, 524 U.S. at 191, 118 S.Ct. 1939. In the context of criminal statutes, the word “willful” generally indicates a requirement of specific intent. United States v. Henderson, 243 F.3d 1168, 1173 (9th Cir.2001). “As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ ” Bryan, 524 U.S. at 191, 118 S.Ct. 1939. Said otherwise, “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that" }, { "docid": "4071284", "title": "", "text": "the appellants’ conduct, 29 U.S.C. § 186(d)(2), specifies the punishment for those who “willfully violate” Section 186 ‘sprohibition against union officials’ acceptance of payments from employers. At trial, both appellants asked the district court for a specific intent instruction on “willfulness”— that is, an instruction that the government was required to prove that the appellants had acted with bad purpose and with knowledge that their conduct was unlawful. The district court rejected their request, and instead instructed the jury that the government needed only to prove that the appellants’ conduct was deliberate and voluntary. The appellants acknowledge that we have long held that, as used in Section 186, “willfully” does not require a showing of bad purpose or of unlawful intent. See United States v. Ricciardi, 357 F.2d 91, 100 (2d Cir.), cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 840 (1966) and 385 U.S. 814, 87 S.Ct. 35, 17 L.Ed.2d 55 (1966); United States v. Ryan, 232 F.2d 481, 482-83 (2d Cir.1956). Nonetheless, they claim that we are required to revise that holding in light of the Supreme Court’s decisions in Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), and Bryan v. United States, — U.S. -, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). In Ratzlaf, the Supreme Court held that the “willfulness” element of the antistructuring provision of the Money Laundering Control Act of 1986, 31 U.S.C. § 5324, required a showing that the defendant acted with knowledge that his conduct was unlawful. See 510 U.S. at 549. At issue in Bryan was the “willfulness” element of 18 U.S.C. § 922(a)(1)(A), as amended by the Firearms Owners’ Protection Act in 1986. In its discussion, the Court noted that “as a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ In other words, in order to establish a “willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Bryan, — U.S. at -, 118 S.Ct. at 1945 (emphasis supplied; footnote and internal" } ]

[ { "docid": "18419803", "title": "", "text": "actual or potential customers, or in position to “influence” business. (4) Subscriptions to periodicals of general interest, such as Time. The cost of subscriptions to matter more exclusively of business interest, as the Wall Street Journal, was allowed by the Commissioner. The taxpayer testified it was necessary that he be informed of general affairs in order to converse effectively with his associates and make speeches. (5) Contributions to schools, a public library and other organizations which the Commissioner agreed would qualify as charitable contributions, but not as business expense. (6) A general miscellany of expense items, principally relating to entertainment, much of it in taxpayer’s home, and to gifts and remembrances. Many of these items are a prorated portion of the total cost, other portions of the total cost having been charged to one or more of the corporations as reimbursable expense. The unreimbursed portion of these items was subject to a further allocation between “unreimbursed business expense,” for which deduction was claimed, and “personal expense” for which no deduction was claimed. The allocations were his own, and he made no attempt to obtain complete reimbursement for these items, for he felt the total cost was not properly chargeable to the corporations. We start with the assumption that every person who works for compensation is engaged in the business of earning his pay, and that expense which is essential to the continuance of his employment is deductible under § 23(a)(1)(A) of the Internal Revenue Code of 1939 (26 U.S.C.A. § 23). See Hill v. Commissioner, 4 Cir., 181 F.2d 906; Schmidlapp v. Commissioner, 2 Cir., 96 F.2d 680, 118 A.L.R. 297. Salary has been treated as business income within the meaning of § 122 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 122. Batzell v. Commissioner, 4 Cir., 266 F.2d 371; Roberts v. Commissioner, 5 Cir., 258 F.2d 634; Pierce v. United States, 9 Cir., 254 F.2d 885; Overly v. Commissioner, 3 Cir., 243 F.2d 576; Folker v. Johnson, 2 Cir., 230 F.2d 906. The business of a corporation, however, is not that of its officers, employees or" } ]

[ { "docid": "22367595", "title": "", "text": "of the debt for this purpose is not controlled by the circumstances attending its 'creation or its subsequent acquisition by the taxpayer or by the use to which the borrowed funds are put by the recipient, but is to be determined rather by the relation which the loss resulting from the debt’s becoming worthless bears to the trade or business of the taxpayer. If that relation is a proximate one in the conduct of the tra'de or business in which the taxpayer is engaged at the time the debt becomes worthless, the debt is not a nonbusiness debt for the purposes of this amendment.” H. R. Rep. No. 2333, 77th Cong., 2d Sess. 77; S. Rep. No. 1631, 77th Cong., 2d Sess. 90. Treasury Regulations 118, §39.23 (k)-6 (b), adopts substantially this language of the Committee. Reports as the test to be applied under § 23 (k). To the extent that they hold or contain statements to the contrary, we disapprove of such cases as Maytag v. United States. 153 Ct. Cl. 622, 289 F. 2d 647; Mays v. Commissioner, 272 F. 2d 788 (C. A. 6th Cir.); Commissioner v. Stokes’ Estate, 200 F. 2d 637 (C. A. 3d Cir.); Foss v. Commissioner, 75 F. 2d 326 (C. A. 1st Cir.); Washburn v. Commissioner, 51 F. 2d 949 (C. A. 8th Cir.); Sage v. Commissioner, 15 T. C. 299; Campbell v. Commissioner, 11 T. C. 510; and Cluett v. Commissioner, 8 T. C. 1178. Compare Maloney v. Spencer, 172 F. 2d 638 (C. A. 9th Cir.), and Dorminey v. Commissioner, 26 T. C. 940. See under § 122 (net operating loss carry-over) Folker v. Johnson, 230 F. 2d 906 (C. A. 2d Cir.); Overly v. Commissioner, 243 F. 2d 576 (C. A. 3d Cir.); Batzell v. Commissioner, 266 F. 2d 371 (C. A. 4th Cir.); Roberts v. Commissioner, 258 F. 2d 634 (C. A. 5th Cir.) ; Pierce v. United States, 254 F. 2d 885 (C. A. 9th Cir.). But cf., McGinn v. Commissioner, 76 F. 2d 680 (C. A. 9th Cir.); Hughes v. Commissioner, 38 F. 2d 755 (C." }, { "docid": "9825690", "title": "", "text": "activities included personal efforts to manage the six units in seeking new tenants, in supplying furnishings, and in cleaning and otherwise preparing the units for new tenants. These activities were sufficiently systematic and continuous to place him in the business of real estate rental. See Alvary v. United States, 302 F.2d 790 (2d Cir. 1962), and cases cited therein; Fackler v. Commissioner, 133 F.2d 509 (6th Cir. 1943), affg. 45 B.T.A. 708 (1941); Bauer v. United States, 144 Ct. Cl. 308, 168 F. Supp. 539 (1958). Compare Grier v. United States, supra. Statements to the effect that the rental of real estate may constitute a trade or business are by no means confined, as respondent would have us believe, to dicta in cases involving whether capital or ordinary gain must be recognized; where a loss is involved, the “trade or business” issue is critical. See, e.g., Gilford v. Commissioner, 201 F.2d 735 (2d Cir. 1953), affg. a Memorandum Opinion of this Court (ordinary loss recognized on sale of property used in rental business); see also Pinchot v. Commissioner, 113 F.2d 718 (2d Cir. 1940) (nonresident alien was engaged in a business, management of rental properties, within the United States); Fegan v. Commissioner, supra (allowance of investment credit); Schwarcz v. Commissioner, 24 T.C. 733 (1955) (war losses attributable to operation of rental business could be carried forward); Lagreide v. Commissioner, supra (net operating loss carryover); Jamison v. Commissioner, 8 T.C. 173 (1947) (ordinary loss allowed because property used in rental business); Noble v. Commissioner, supra. Respondent maintains that even if petitioner was engaged in the trade or business of renting real property, his principal place of business for purposes of section 280A(c)(1)(A) was Kaiser Permanente Hospital, where he practiced dermatology, and not the home office, from which he managed his rental properties. Respondent does not deny that a taxpayer may have two trades or businesses or be engaged in a profession and a business. See Achong v. Commissioner, 246 F.2d 445, 447 (9th Cir. 1957), affg. a Memorandum Opinion of this Court; Sherman v. Commissioner, 16 T.C. 332, 337 (1951). In" }, { "docid": "22203466", "title": "", "text": "neither expressly nor im plicitly directed. To deny a deduction for expenses incurred in the unsuccessful defense of a criminal prosecution would impose such a burden in a measure dependent not on the seriousness of the offense or the actual sentence imposed by the court, but on the cost of the defense and the defendant’s particular tax bracket. We decline to distort the income tax laws to serve a purpose for which they were neither intended nor designed by Congress. The judgment is Affirmed. “ (a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in- carrying on any trade or business . . . .” 26 U. S. C. § 162. 48 Stat. 84, §17, as amended, 15 U. S. C. § 77q (a). 18 U. S. C. § 1341. 18 U. S. C. §371. United States v. Tellier, 255 F. 2d 441 (C. A. 2d Cir.). See Griswold, An Argument Against the Doctrine that Deductions Should Be Narrowly Construed as a Matter of Legislative Grace, 56 Harv. L. Rev. 1142, 1145; Wolfman, Professors and the “Ordinary and Necessary” Business Expense, 112 U. Pa. L. Rev. 1089, 1111-1112. See Brookes, Litigation Expenses and the Income Tax, 12 Tax L. Rev. 241. See Sarah Backer, 1 B. T. A. 214; Norvin R. Lindheim, 2 B. T. A. 229; Thomas A. Joseph, 26 T. C. 562; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178 (C. A. 2d Cir.); Commissioner v. Schwartz, 232 F. 2d 94 (C. A. 5th Cir.); Acker v. Commissioner, 258 F. 2d 568 (C. A. 6th Cir.); Bell v. Commissioner, 320 F. 2d 953 (C. A. 8th Cir.); Peckham v. Commissioner, 327 F. 2d 855, 856 (C. A. 4th Cir.); Port v. United States, 143 Ct. Cl. 334, 163 F. Supp. 645. See also Note, Business Expenses, Dis-allowance, and Public Policy: Some Problems of Sanctioning with the Internal Revenue Code, 72 Yale L. J. 108; 4 Mertens, Law of Federal Income Taxation § 25.49 ff. Compare Longhorn Portland Cement Co., 3 T." }, { "docid": "22545512", "title": "", "text": "case of the deduction under section 23 (a) (1) (A) of an expense paid or incurred in carrying on any trade or business.” See also S. Rep. No. 1631, 77th Cong., 2d Sess. 88. The Treasury Regulations have long provided: “An expense (not otherwise deductible) paid or incurred by an individual in determining or contesting a liability asserted against him does not become deductible by reason of the fact that property held by him for the production of income may be required to be used or sold for the purpose of satisfying such liability.” Treas. Reg. (1954 Code) § 1.212-1 (m); see Treas. Reg. 118 (1939 Code) §39.23 (a)-15 (k). Expenses of contesting tax liabilities are now deductible under § 212 (3) of the 1954 Code. This provision merely represents a policy judgment as to a particular class of expenditures otherwise nondeductible, like extraordinary medical expenses, and does not cast any doubt on the basic tax structure set up by Congress. We find no indication that Congress intended § 23 (a) (2) to include such expenses. Besides the present case see to the same effect, e. g., Patrick v. United States, 288 F. 2d 292 (C. A. 4th Cir.), No. 22, reversed today, post, p. 53; Owens v. Commissioner, 273 F. 2d 251 (C. A. 5th Cir.) ; Bowers v. Commissioner, 243 F. 2d 904 (C. A. 6th Cir.); McMurtry v. United States, 132 Ct. Cl. 418, 132 F. Supp. 114. Expenses incurred in divorce litigation have generally been held to be nondeductible. See, e. g., Richardson v. Commissioner, 234 F. 2d 248 (C. A. 4th Cir.); Smith’s Estate v. Commissioner, 208 F. 2d 349 (C. A. 3d Cir.); Joyce v. Commissioner, 3 B. T. A. 393. See also Treas. Reg. (1954 Code) § 1.262-1 (b) (7): “Generally, attorney’s fees and other costs paid in connection with a divorce, separation, or decree for support are not deductible by either the husband or the wife.” See, e. g., the present case, — Ct. Cl., at —, 290 F. 2d, at 947; Tressler v. Commissioner, 228 F. 2d 356, 361 (C. A." }, { "docid": "17541383", "title": "", "text": "the facts and circumstances, see the opinion of the Tax Court. Under these facts, the taxpayer contends that his temporary position with the federal government during 1951 and 1952 was not “a trade or business regularly carried on”. (Emphasis supplied.) Since the decision in Anders I. Lagreide, 1954, 23 T.C. 508, it seems to be settled that salaried employees are occupied in the operation of a trade or business within the meaning of Section 122. Roberts v. Commissioner, 5 Cir., 1958, 258 F.2d 634; Pierce v. United States, 9 Cir., 1958, 254 F.2d 885; Overly v. Commissioner, 3 Cir., 1957, 243 F.2d 576; Folker v. Johnson, 2 Cir., 1956, 230 F.2d 906. However, no case has been called to our attention in which there was a determination of the question as to what was the sense and intent of Congress in inserting the word “regularly” in Section 122. Since there is no legislative definition of the term, it is agreed by both parties here that the word must be taken and construed in its generally accepted sense. See Folker v. Johnson, supra. Cf. United States v. Gilbert Associates, Inc., 1953, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071. According to Webster’s New Collegiate Dictionary (1953), the word “regular”, from which “regularly” is derived, is appropriately defined as “steady or uniform in course, practice, etc.” and “implies conformity to a rule, standard, or pattern”. Taxpayer contends that the term must be construed in the light of taxpayer’s entire career, and that the period in question during which he was temporarily employed by the federal government constituted a deviation from his regular business and profession. It is the opinion of this Court, however, that the logical answer to the question of congressional intent with which we are here concerned is that “regularly” applies, not with respect to the taxpayer’s normal and intended life’s work, but with respect to the period of time under consideration. Throughout the period from May 1, 1951, to August 31, 1952, the taxpayer “regularly” carried on the business for which he was hired by the federal government." }, { "docid": "17541382", "title": "", "text": "Commissioner, .however, has treated taxpayer’s salary for federal service as business income, thus reducing the allowable deduction for non-business loss in 1952 which might be carried back to 1951. The amount of the deficiency has been stipulated and thus is not in issue. Taxpayer is a lawyer and economic adviser specializing in- matters concerning the petroleum industry. During World War II taxpayer had served as an attorney in the Office of Petroleum Coordinator for Defense and Petroleum Administrator for War, subsequently returning to his private practice. Upon the outbreak of hostilities in Korea, Batzell was persuaded to accept a high-salaried position in the Petroleum Administration for Defense, with the understanding that the employment would be for a period of one year only. The law firm in which he was a partner was dissolved and he was’ completely disassociated from any private law practice. The period of government employment actually extended from May 1, 1951, to August 31, 1952, at the end of which time he resumed the practice’of law. For a more detailed statement of the facts and circumstances, see the opinion of the Tax Court. Under these facts, the taxpayer contends that his temporary position with the federal government during 1951 and 1952 was not “a trade or business regularly carried on”. (Emphasis supplied.) Since the decision in Anders I. Lagreide, 1954, 23 T.C. 508, it seems to be settled that salaried employees are occupied in the operation of a trade or business within the meaning of Section 122. Roberts v. Commissioner, 5 Cir., 1958, 258 F.2d 634; Pierce v. United States, 9 Cir., 1958, 254 F.2d 885; Overly v. Commissioner, 3 Cir., 1957, 243 F.2d 576; Folker v. Johnson, 2 Cir., 1956, 230 F.2d 906. However, no case has been called to our attention in which there was a determination of the question as to what was the sense and intent of Congress in inserting the word “regularly” in Section 122. Since there is no legislative definition of the term, it is agreed by both parties here that the word must be taken and construed in its generally" }, { "docid": "23320656", "title": "", "text": "A. 9th Cir. 1962). Steinhort v. Commissioner, 335 F. 2d 496 (C. A. 5th Cir. 1964); United States v. Le Blanc, 278 F. 2d 571 (C. A. 5th Cir. 1960). Burns v. Gray, 287 F. 2d 698 (C. A. 6th Cir. 1961). See, e. g., Friedman v. Commissioner, 37 T. C. 539 (1961); Carroll v. Commissioner, 20 T. C. 382 (1953). The facts of the Carroll case are closely analogous to the circumstances surrounding the claimed deduction here. The taxpayer there was an employee of the War Department who in 1947 was transferred to a “permanent duty station” in Korea for a minimum of one year. His wife and child remained in the United States. A deduction for the cost of meals and lodging while in Korea was not allowed by the Tax Court which noted that the taxpayer’s employer (1) designated Korea as a “permanent duty station” and (2) granted per diem travel allowances only while the taxpayer was en route to and from Korea, not while he was based there. See also Todd v. Commissioner, 10 T. C. 655 (1948). See, e. g., O’Toole v. Commissioner, 243 F. 2d 302 (C. A. 2d Cir. 1957); Coerver v. Commissioner, 297 F. 2d 837 (C. A: 3d Cir. 1962), affirming 36 T. C. 252 (1961); Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948); England v. United States, 345 F. 2d 414 (C. A. 7th Cir. 1965); Cockrell v. Commissioner, 321 F. 2d 504 (C. A. 8th Cir. 1963); and York v. Commissioner, 82 U. S. App. D. C. 63, 160 F. 2d 385 (1947). The Courts of Appeals for the First and Tenth Circuits apparently have not taken a position on this question. 66 Stat. 467. The exception was carried over to the 1954 Code and now reads: “For purposes of the preceding sentence, the place of residence of a Member of Congress . . . within the State, congressional district, Territory, or possession which he represents in Congress shall be considered his'home, but amounts expended by such Members within each taxable year for living expenses" }, { "docid": "14319849", "title": "", "text": "Corp. is not attributable to the operation of a trade or business regularly carried on by himself. The Government contends to the contrary, and the District Court, in a reasoned opinion by Judge Ryan, so held, S.D.N.Y.1955, 135 F.Supp. 118. The phrase “trade or business” has a common and well-understood connotation as referring to the activity or activities in which a person engages for the purposes of earning a livelihood. See Daily Journal Co. v. Commissioner, 9 Cir., 1943, 135 F.2d 687. Absent controlling precedents requiring a contrary conclusion, we would feel constrained to give “trade or business” its more usual broadly-inclusive meaning. Indeed, Congress must be presumed to use language in its usual or conventional sense unless there is a clear indication to the contrary. See United States v. Gilbert Associates, Inc., 1953, 345 U.S. 361, 364, 73 S.Ct. 701, 97 L.Ed. 1071. And we have found nothing which has persuaded us to alter this initial view. There is very little direct authority on the precise question presented here. The Tax Court has considered the question three times in the last few years and after some uncertainty has ruled that the salaried employee or corporate officer is engaged in a “trade or business regularly carried on by the taxpayer” within the meaning of that clause as used in Section 122(d) (5). See Ranson v. Commissioner, 1952, 11 T.C.M. 699; Luton v. Commissioner, 1952, 18 T.C. 1153; Lagreide v. Commissioner, 1954, 23 T. C. 508. The only other cases we have discovered are either of early date or relate to Section 23(a), 26 U.S.C.A.(I.R. C.1939) § 23(a), which contains the phrase “trade or business” in a context allowing deductions from gross income for ordinary and necessary business expenses. The taxpayer relies primarily on McGinn v. Commissioner, 9 Cir., 1935, 76 F.2d 680, 99 A.L.R. 564, and Hughes v. Commissioner, 10 Cir., 1930, 38 F.2d 755. Both of these cases were concerned with similar phraseology found in § 204(a) of the Revenue Act of 1921, an earlier statutory pattern for the allowance of net operating losses. In the Hughes case it" }, { "docid": "14319850", "title": "", "text": "the question three times in the last few years and after some uncertainty has ruled that the salaried employee or corporate officer is engaged in a “trade or business regularly carried on by the taxpayer” within the meaning of that clause as used in Section 122(d) (5). See Ranson v. Commissioner, 1952, 11 T.C.M. 699; Luton v. Commissioner, 1952, 18 T.C. 1153; Lagreide v. Commissioner, 1954, 23 T. C. 508. The only other cases we have discovered are either of early date or relate to Section 23(a), 26 U.S.C.A.(I.R. C.1939) § 23(a), which contains the phrase “trade or business” in a context allowing deductions from gross income for ordinary and necessary business expenses. The taxpayer relies primarily on McGinn v. Commissioner, 9 Cir., 1935, 76 F.2d 680, 99 A.L.R. 564, and Hughes v. Commissioner, 10 Cir., 1930, 38 F.2d 755. Both of these cases were concerned with similar phraseology found in § 204(a) of the Revenue Act of 1921, an earlier statutory pattern for the allowance of net operating losses. In the Hughes case it was stated broadly that salaried and professional men are not engaged in business with respect to their professional duties or salaried positions, and it was held that the net income earned in practicing law was non-business income. In the McGinn case a loss resulting from alleged mismanagement of a corporation by an officer was held not attributable to any trade or business of the officer. We think these cases are distinguishable or erroneous, and that the phrase “trade or business” as used here should not be given such a narrow interpretation. The Government relies primarily on the recent Tax Court cases, Ranson and ’ Lagreide, cited supra, and on the many cases arising under Section 23 of the Internal Revenue Code of 1939 which interpret in a broad manner the identical phrase here involved (which also appears in that section). Taxpayer, however, argues that cases arising under Section 23 which interpret the phrase “trade or business” should not be authority for a similar interpretation of the same phrase appearing in Section 122(d) (5). It is" }, { "docid": "10056922", "title": "", "text": "terms. Although there have been exceptions, it is established by the great weight of authority that, if a taxpayer has riot misrepresented or suppressed the facts, .the statute of limitations not only prevents any reassessment of the tax after the prescribed period has passed; but that the Treasury may not assess a tax for a later year to make up for a credit erroneously allowed, or a charge erroneously omitted, in an earlier year. That is indeed at times a rule harsh in its application; but so are all statutes of limitations; and we are to assume that any losses so arising are matched by the relief to taxpayers that the burden of any disputes has ended and that they will never have to pay any more taxes for that year. In the case at bar it is of course too late to reassess Dwyer’s taxes for any years before 1946, so it follows that the order relieves him of a part, though an un-ascertainable part, of his proper tax for that year; but as the law stands, the Tax Court was right, for the error of the earlier years may not now be corrected. William Hardy Inc., v. Commissioner, supra, 82 F.2d 249, is overruled, and the order will he affirmed. Order affirmed. . Regulations 111, § 29.22(c)-1. . 5 22(c), Title 26 U.S.C. . Commissioner v. Mnookin’s Estate, 8 Cir., 184 F.2d 89; Commissioner v. Frame, 3 Cir., 195 F.2d 166; Commissioner v. Schuyler, 2 Cir., 196 F.2d 85; Welp v. United States, 8 Cir., 201 F.2d 128; Caldwell v. Commissioner, 2 Cir., 202 F.2d 112. . § 29.22 (c) —1, Regulations 111. . § 22(c), Title 26 U.S.C. . Bigelow v. Bowers, 2 Cir., 68 F.2d 839; Schmidlapp v. Commissioner, 2 Cir., 96 F.2d 680, 118 A.L.R. 297; Lembeke v. Commissioner, 2 Cir., 126 F.2d 940; Bennet v. Helvering, 2 Cir., 137 F.2d 537. . Commissioner v. Saltonstall, 1 Cir., 124 F.2d 110; Countway v. Commissioner, 1 Cir., 127 F.2d 69; Ross v. Commissioner, 1 Cir., 169 F.2d 483, 7 A.L.R.2d 719; Commissioner v. Mellon, 3 Cir.," }, { "docid": "23426320", "title": "", "text": "a corporate officer was likewise “gross income not derived from such trade or business,” so that, as the taxpayer contended, the non-business losses could be deducted therefrom. In other words, Folker, like Hughes (although for a somewhat different reason) but unlike Dalton, Clark, Van Dyke and McGinn, was interested in obtaining a decision that working for a company was not a trade or business. In that endeavor he failed. This Court said, 230 F.2d at page 907, that “The phrase ‘trade or business’ has a common and well-understood connotation as referring to the activity or activities in which a person engages for the purposes of earning a livelihood”; it distinguished the Dalton and Clark cases and its own decision in C. I. R. v. Smith, supra, as involving “attempts by corporate officers, directors, and stockholders to deduct from their personal income losses resulting from isolated loans to or investments in corporations in which they had a financial interest”; it characterized the Hughes and McGinn decisions as “distinguishable or erroneous”; and it held, 230 F.2d at page 909, that taxpayer “was engaged in a trade or business — the trade or business of rendering services for pay.” The Folker decision soon attracted a wide following. The Third Circuit adopted it almost immediately, Overly v. C. I. R., 3 Cir., 1957, 243 F.2d 576, recognizing the conflict with Hughes and condemning the Hughes decision as wrong; so also did the Fifth, Roberts v. C. I. R., 5 Cir., 1958, 258 F.2d 634, disapproving the Hughes case, the Fourth, Batzell v. C. I. R., 4 Cir., 1959, 266 F.2d 371, and the Ninth, Pierce v. United States, 9 Cir., 1958, 254 F.2d 885, that Court making no mention of its own decisions in Van Dyke v. C. I. R., supra, which doubtless was distinguishable, or in McGinn v. C. I. R., supra, which scarcely seems so. The tortuous tale of what is now § 172(d) (4) of the 1954 Code thus seems to have had a happy ending for the taxpayer here, five Courts of Appeals having held that being a corporate employee" }, { "docid": "22367596", "title": "", "text": "2d 647; Mays v. Commissioner, 272 F. 2d 788 (C. A. 6th Cir.); Commissioner v. Stokes’ Estate, 200 F. 2d 637 (C. A. 3d Cir.); Foss v. Commissioner, 75 F. 2d 326 (C. A. 1st Cir.); Washburn v. Commissioner, 51 F. 2d 949 (C. A. 8th Cir.); Sage v. Commissioner, 15 T. C. 299; Campbell v. Commissioner, 11 T. C. 510; and Cluett v. Commissioner, 8 T. C. 1178. Compare Maloney v. Spencer, 172 F. 2d 638 (C. A. 9th Cir.), and Dorminey v. Commissioner, 26 T. C. 940. See under § 122 (net operating loss carry-over) Folker v. Johnson, 230 F. 2d 906 (C. A. 2d Cir.); Overly v. Commissioner, 243 F. 2d 576 (C. A. 3d Cir.); Batzell v. Commissioner, 266 F. 2d 371 (C. A. 4th Cir.); Roberts v. Commissioner, 258 F. 2d 634 (C. A. 5th Cir.) ; Pierce v. United States, 254 F. 2d 885 (C. A. 9th Cir.). But cf., McGinn v. Commissioner, 76 F. 2d 680 (C. A. 9th Cir.); Hughes v. Commissioner, 38 F. 2d 755 (C. A. 10th Cir.). See under § 23 (a) (1) (ordinary and necessary expenses of trade or business) Schmidlapp v. Commissioner, 96 F. 2d 680 (C. A. 2d Cir.); Noland v. Commissioner, 269 F. 2d 108, 111 (C. A. 4th Cir.). Although petitioner received no rental payments from Mission Orange, there was rent owing to him under the 10-year-lease agreement." }, { "docid": "9825691", "title": "", "text": "Pinchot v. Commissioner, 113 F.2d 718 (2d Cir. 1940) (nonresident alien was engaged in a business, management of rental properties, within the United States); Fegan v. Commissioner, supra (allowance of investment credit); Schwarcz v. Commissioner, 24 T.C. 733 (1955) (war losses attributable to operation of rental business could be carried forward); Lagreide v. Commissioner, supra (net operating loss carryover); Jamison v. Commissioner, 8 T.C. 173 (1947) (ordinary loss allowed because property used in rental business); Noble v. Commissioner, supra. Respondent maintains that even if petitioner was engaged in the trade or business of renting real property, his principal place of business for purposes of section 280A(c)(1)(A) was Kaiser Permanente Hospital, where he practiced dermatology, and not the home office, from which he managed his rental properties. Respondent does not deny that a taxpayer may have two trades or businesses or be engaged in a profession and a business. See Achong v. Commissioner, 246 F.2d 445, 447 (9th Cir. 1957), affg. a Memorandum Opinion of this Court; Sherman v. Commissioner, 16 T.C. 332, 337 (1951). In such situations, the expenses properly attributable to each business are deductible. Fackler v. Commissioner, 133 F.2d at 511-512. Respondent argues, nevertheless, that, where a taxpayer is engaged in more than one business, a deduction is allowable under section 280A(c)(1)(A) only if, when all his businesses are considered together, his home office is his principal place of business as determined by evaluating the time spent, the degree of business activity, and the financial return from the activity at each business post. Respondent’s suggested criteria for determining the taxpayer’s principal place of business are drawn from cases involving the issue of whether a taxpayer was “away from home” for purposes of section 162(a). E.g., Frank v. United States, 577 F.2d 93 (9th Cir. 1978); Montgomery v. Commissioner, 532 F.2d 1088 (6th Cir. 1976), affg. 64 T.C. 175 (1975). See also Coombs v. Commissioner, 608 F.2d 1269 (9th Cir. 1979), affg., revg., and remanding 67 T.C. 426 (1976). “Principal place of business,” as used in those cases, refers to a general area or vicinity in which a taxpayer’s" }, { "docid": "23294355", "title": "", "text": "his attempt to bolster up such thin evidence of a profit motive underlying his claimed business of being a corporate executive, the taxpayer conjoined thereto the entirely different “business” of being a track operator, for which services his expenses were actually paid, and “if he had continued” (to operate the track, he was to have been paid) “a salary”, (amount undisclosed). In other words, he was to have been a salaried employee of the Jockey Club, viz., a track operator, similar to Webb Everett. While a taxpayer may be engaged in more than one business, Folker v. Johnson, 230 F.2d 906 (2d Cir., 1956) ; Farish v. C. I. R., 103 F.2d 63 (5th Cir., 1939); John Abbott, 38 B.T.A. 1290; C. I. R. v. Field, 67 F.2d 876 (2d Cir., 1933), the deductions which may be taken under Section 23 must be proved to have been expenses or losses incurred through carrying on a particularized trade or business. Cf. Higgins v. Commissioner, supra; Giblin v. C. I. R., 227 F.2d 692 (5th Cir., 1955). Hirsch was no tyro in the field of corporate business or race track operations, yet he offered nothing to the Tax Court on the most important question of the profit or income motive underlying his Jockey Club activities — -other than those two nebulous discussions concerning possible payment. Even though Hirsch specially requested a finding that he had performed his duties as a member of the executive committee with full expectation of receiving compensation at such time as the track was successful, the Tax Court made no such finding. As was true of the taxpayer in Young v. C. I. R., 268 F.2d 245 (9 Cir., 1959); Hearn v. C. I. R., 309 F.2d 431 (9 Cir., 1962), and Kerns Wright v. G. I. R., supra, we, like the’ Tax Court, are not convinced that Hirsch became a director of the Jockey Club and the most active member of its executive committee for the basic purpose of making a profit or receiving income from the activity of being a corporate executive of the Club. We" }, { "docid": "18393434", "title": "", "text": "therefore Affirmed. . Folker v. Johnson, 2 Cir., 1956, 230 F. 2d 906; Overly v. Commissioner, 3 Cir., 1957, 243 F.2d 576; Pierce v. United States, 9 Cir., 254 F.2d 885; Lagreide v. Commissioner, and Ranson v. Commissioner, note 1, supra. . Section 204(a) of the Revenue Act of 1918 [40 Stat. 1057 (1918)]. . 42 Stat. 231 (1921); 43 Stat. 253 (1924); 44 Stat. 9 (1926); 45 Stat. 791 (1928); 47 Stat. 169 (1932). The 1032 Act changed the carry-over provisions from two years to one year. See 26 U.S.C.A., Internal Revenue Acts, 1924 to Date. . 48 Stat. 195, 209 (1933). . Section 231 Revenue Act of 3939 providing for section 322 of the Internal Revenue Code of 1939; 53 Stat. 862 (1939), 26 U.S.C.A. § 122. . 56 Stat. 807 (1942). . Under section 204(a) of the Revenue Act of 1921 [42 Stat. 231 (1921)], “net loss” included “losses * * * from the sale or * * * disposition of * * capital assets used in the conduct of such trade or business.” Section 122 (d) (4) of the 1939 Code did not contain these provisions, and many cases have held that an isolated or occasional activity, as a capital asset sale, will not come within this deduction provision. See Appleby v. United States, 1953, 116 F.Supp. 410, 127 Ct.Cl. 91; See also, 5 Mertens, Federal Income Taxation, § 29.-05. However, section 172(d) (4) (A) of the 1954 Code allows an inclusion of a loss from the sale of a capital asset and in that respect this case may not have arisen under the 1954 Code. . Senate Report No. 617, explaining section 204 of the Revenue Bill of 1918; 1939-1 (Part 2) Cum.Bull. 121-122. . H.R.Rep. No. 350, 67th Cong.; 1939-1 (Part 2) Cum.Bull. 176. . H.R.Rep. No. 855, 76th Cong.; 1939-2 Cum.Bull. 504, 508, 517. This report also stated: “The bill, together with the committee amendments, permits taxpayers to carry over net operating business losses for a period of 2 years. Prior to the Revenue Act of 1932, such 2-year carry-over was allowed. No" }, { "docid": "22203467", "title": "", "text": "as a Matter of Legislative Grace, 56 Harv. L. Rev. 1142, 1145; Wolfman, Professors and the “Ordinary and Necessary” Business Expense, 112 U. Pa. L. Rev. 1089, 1111-1112. See Brookes, Litigation Expenses and the Income Tax, 12 Tax L. Rev. 241. See Sarah Backer, 1 B. T. A. 214; Norvin R. Lindheim, 2 B. T. A. 229; Thomas A. Joseph, 26 T. C. 562; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178 (C. A. 2d Cir.); Commissioner v. Schwartz, 232 F. 2d 94 (C. A. 5th Cir.); Acker v. Commissioner, 258 F. 2d 568 (C. A. 6th Cir.); Bell v. Commissioner, 320 F. 2d 953 (C. A. 8th Cir.); Peckham v. Commissioner, 327 F. 2d 855, 856 (C. A. 4th Cir.); Port v. United States, 143 Ct. Cl. 334, 163 F. Supp. 645. See also Note, Business Expenses, Dis-allowance, and Public Policy: Some Problems of Sanctioning with the Internal Revenue Code, 72 Yale L. J. 108; 4 Mertens, Law of Federal Income Taxation § 25.49 ff. Compare Longhorn Portland Cement Co., 3 T. C. 310; G. C. M. 24377, 1944 Cum. Bull. 93; Lamont, Controversial Aspects of Ordinary and Necessary Business Expense, 42 Taxes 808, 833-834. In challenging the amendments, Senator Williams also stated: “In other words, you are going to count the man as having money which he has not got, because he has lost it in a way that you do not approve of.” 50 Cong. Rec. 3850. Specific legislation denying deductions for payments that violate public policy is not unknown. E. g., Internal Revenue Code of 1954, § 162 (c) (disallowance of deduction for payments to officials and employees of foreign countries in circumstances where the payments would be illegal if federal laws were applicable; cf. Treas. Reg. §1.162-18); §165 (d) (deduction for wagering losses limited to extent of wagering gains). See also Stabilization Act of 1942, § 5 (a), 56 Stat. 767, 50 U. S. C. App. § 965 (a) (1946 ed.), Defense Production Act of 1950, §405 (a), 64 Stat. 807, as amended, c. 275, § 104 (i), 65 Stat. 136 (1951), 50" }, { "docid": "23426318", "title": "", "text": "was developing town sites and organizing public utilities and that his primary purpose with respect to the lumber company was “making an investment in the company for a profit.” By the time the case reached the Ninth Circuit, the Dahon and Clark cases had been decided by the Supreme Court, and the Court of Appeals affirmed on their authority, 1933, 63 F.2d 1020, as did the Supreme Court, 1934, 291 U.S. 642, 54 S.Ct. 437, 78 L.Ed. 1040. There was nothing in Van Dyke to require the Supreme Court* to deal with either of the issues noted above which had not been dealt with by it in Dalton and Clark, although they had been by the Tenth Circuit in Hughes. However, in McGinn v. C. I. R., 9 Cir., 1935, 76 F.2d 680, the Court of Appeals took the Supreme Court decisions, including the per curiam affirmance of its decision in Van Dyke, as being inconsistent with Washburn v. C. I. R., 8 Cir., 1931, 51 F.2d 949, which had disagreed with Hughes; on that score, it held in McGinn that losses incurred in following the trade or business of being a corporate officer did not result “from the operation of a trade or business regularly carried on by the taxpayer.” This, we think, attributed to the Supreme Court decisions an effect they had not possessed. Long afterwards, this Court was confronted with the problem, in Folker v. Johnson, 2 Cir., 1956, 230 F.2d 906. That case arose under § 122 of the 1939 Code, 26 U.S.C.A. § 122, which provided for carry-backs and carry-overs of “net operating loss.” Section 122(d) (5) said that in computing such loss, deductions “not attributable to the operation of a trade or business regularly carried on by the taxpayer shall * * * be allowed only to the extent of the amount of the gross income not derived from such trade or business.” The deductions sought to be carried over were admittedly “not attributable to the operation of a trade or business regularly carried on by the taxpayer”; the issue was whether salary as" }, { "docid": "18415552", "title": "", "text": "loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed— “(i) with the exceptions, additions, and limitations provided in subsection (d)(1), (2), (4), and (6), and “(ii) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss and without regard to any reduction specified in subsection (c). “(B) Loss for taxable year beginning after 1949. If for any taxable year beginning after December 31, 1949, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for the preceding taxable year. * * * * * “(d) Exceptions, additions, and limitations. “The exceptions, additions, and limitations referred to in subsections (a), (b), and (c) shall be as follows: * * * * * * “(5) Deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall (in the case of a taxpayer other than a corporation) be allowed only to the extent of the amount of the gross income not derived from such trade or business. For the purposes of this paragraph deductions and gross income shall be computed with the exceptions, additions, and limitations specified in paragraphs (1) to (4) of this subsection.” Insofar as the husband’s one half of the salary is concerned this court is satisfied with the holdings in Folker v. Johnson, 2 Cir., 230 F.2d 906, and Overly v. Commissioner, 3 Cir., 243 F.2d 576, wherein it is held that working for a salary puts one in the business of sell ing one’s own service; that such salary is not non-business income. The taxpayer’s second contention that he can separate his businesses and carry back a loss in 1948 from business “A” to the same business “A” profit in 1946, ignoring the profit in business “B” (that is, not" }, { "docid": "18393433", "title": "", "text": "of zero, should properly be considered in offsetting lean years against lush years. The word “operation” was used for another purpose; that is to refer to the day-to-day carrying on of business, rather than, as for example in this case, the sale of property previously used in business. See Pettit v. Commissioner, 5 Cir., 1949, 175 F.2d 195; Overly v. Commissioner, P-H 1956 T.C.Mem.Dec. para. 56,197, affirmed per curiam, 3 Cir., 1957, 243 F.2d 576; Guggenheimer v. Commissioner, 2 Cir., 1954, 209 F.2d 362; Puente v. Commissioner, 9 Cir., 1952, 199 F.2d 940; Sic v. Commissioner, 8 Cir., 1949, 177 F.2d 469, cer-tiorari denied, 339 U.S. 913, 70 S.Ct. 572, 94 L.Ed. 1339; see also, Appleby v. United States, 1953, 116 F.Supp. 410, 127 Ct.Cl. 91; Charles Weill, 1951, 17 T.C. 318. A construction of section 122(d) (5) to fulfill the purpose for which it was intended seems to us to accord with the present position of the Tax Court and of the Second, Third, and Ninth Circuits. The decision of the Tax Court is therefore Affirmed. . Folker v. Johnson, 2 Cir., 1956, 230 F. 2d 906; Overly v. Commissioner, 3 Cir., 1957, 243 F.2d 576; Pierce v. United States, 9 Cir., 254 F.2d 885; Lagreide v. Commissioner, and Ranson v. Commissioner, note 1, supra. . Section 204(a) of the Revenue Act of 1918 [40 Stat. 1057 (1918)]. . 42 Stat. 231 (1921); 43 Stat. 253 (1924); 44 Stat. 9 (1926); 45 Stat. 791 (1928); 47 Stat. 169 (1932). The 1032 Act changed the carry-over provisions from two years to one year. See 26 U.S.C.A., Internal Revenue Acts, 1924 to Date. . 48 Stat. 195, 209 (1933). . Section 231 Revenue Act of 3939 providing for section 322 of the Internal Revenue Code of 1939; 53 Stat. 862 (1939), 26 U.S.C.A. § 122. . 56 Stat. 807 (1942). . Under section 204(a) of the Revenue Act of 1921 [42 Stat. 231 (1921)], “net loss” included “losses * * * from the sale or * * * disposition of * * capital assets used in the conduct of such trade" }, { "docid": "23426321", "title": "", "text": "page 909, that taxpayer “was engaged in a trade or business — the trade or business of rendering services for pay.” The Folker decision soon attracted a wide following. The Third Circuit adopted it almost immediately, Overly v. C. I. R., 3 Cir., 1957, 243 F.2d 576, recognizing the conflict with Hughes and condemning the Hughes decision as wrong; so also did the Fifth, Roberts v. C. I. R., 5 Cir., 1958, 258 F.2d 634, disapproving the Hughes case, the Fourth, Batzell v. C. I. R., 4 Cir., 1959, 266 F.2d 371, and the Ninth, Pierce v. United States, 9 Cir., 1958, 254 F.2d 885, that Court making no mention of its own decisions in Van Dyke v. C. I. R., supra, which doubtless was distinguishable, or in McGinn v. C. I. R., supra, which scarcely seems so. The tortuous tale of what is now § 172(d) (4) of the 1954 Code thus seems to have had a happy ending for the taxpayer here, five Courts of Appeals having held that being a corporate employee is a “trade or business” within that section. We shall take next a much simpler story, the familiar provision, now § 162 (a), which allows a taxpayer to deduct “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Here the decided weight of authority long has been that a corporate officer may deduct expenses paid or incurred which were incident to the “trade or business” of being a corporate employee although they may also have been incident to the corporation’s own trade or business. C. I. R. v. People’s-Pittsburgh Trust Co., 3 Cir., 1932, 60 F.2d 187 [legal expenses of board chairman in defending against charges of unlawful filing of tax returns] ; Schmidlapp v. C. I. R., 2 Cir., 1938, 96 F.2d 680 [unreimbursed entertainment] ; Hochschild v. C. I. R., 2 Cir., 1947, 181 F.2d 817 [expenses of corporate officer in defending suit arising out of his duties]; Noland v. C. I. R., 4 Cir., 1959, 269 F.2d 108, 111 [statement that" } ]

[ { "docid": "7221265", "title": "", "text": "Mil.R.Evid. 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The Editorial Comment provided by S. Saltzburg, L. Schinasi and D. Schlueter, Military Rules of Evidence Manual 325 (1981), includes this sentence: “The expert who is called to testify need not be ‘an outstanding practitioner,’ but need only be a person who can help the jury.” We agree with the military judge that the witness met this standard of expertise. Mil.R.Evid. 703 states: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert, at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The Editorial Comment in Military Rules of Evidence Manual, supra at 327, advises that an expert may base an opinion upon facts or data that he has perceived or that he has been told about, either while watching the trial or hearing or before, as long as the facts or data upon which the expert relies are “reasonably relied upon by experts in the particular field.” This is so even though the facts or data would not otherwise be admissible in evidence. From this, we may conclude that there was nothing improper about having the witness testify and give her opinions which were based on her observation of the victim while she was testifying in open court, as well as on the stipulation of fact. See United States v. Allen, 7 M.J. 345 (C.M.A.1979). This leaves us with the root issue as to whether her testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Mil.R.Evid. 702. We may also take note of the" } ]

[ { "docid": "15766458", "title": "", "text": "as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The first question is whether the military judge erred by ruling that LCpl Day was an “expert.” We review the military judge's ruling for an abuse of discretion. To prevail, “appellant must come ‘forward with conclusive argument’ that there was an abuse of discretion.” United States v. Houser, 36 MJ 392, 397 (CMA 1993), quoting United States v. Mukes, 18 MJ 358, 359 (CMA 1984). A witness may testify as an expert under MiL.R.Evid. 702 if (1) he or she has scientific, technical, or other specialized knowledge that will assist the members, and (2) the witness is qualified as an expert by virtue of knowledge, skill, experience, training, or education. See United States v. Stinson, 34 MJ 233, 238 (CMA 1992). Mil.R.Evid. 702 permits “[ajnyone who has substantive knowledge in a field beyond the ken of the average court member” to qualify as an expert witness. United States v. Stark, 30 MJ 328, 330 (CMA 1990). “The witness need not be ‘an outstanding practitioner,’ but only someone who can help the jury.” United States v. Mustafa, 22 MJ 165, 168 (CMA 1986). Crime-scene analysis is generally recognized as the product of “specialized knowledge” within the meaning of Mil.R.Evid. 702. See United States v. Meeks, 35 MJ 64, 68 (CMA 1992). We hold that the military judge did not abuse his discretion by permitting LCpl Day to testify as an expert because LCpl Day had training and experience “beyond the ken of the average court member.” United States v. Stark, supra. We turn next to the hearsay testimony on which LCpl Day’s opinion was based in part, and which he repeated to the court members. Appellant argues that the prosecution used LCpl Day to “smuggle” inadmissible hearsay into the courtroom. He further argues that the military judge gave the members the" }, { "docid": "15766459", "title": "", "text": "who has substantive knowledge in a field beyond the ken of the average court member” to qualify as an expert witness. United States v. Stark, 30 MJ 328, 330 (CMA 1990). “The witness need not be ‘an outstanding practitioner,’ but only someone who can help the jury.” United States v. Mustafa, 22 MJ 165, 168 (CMA 1986). Crime-scene analysis is generally recognized as the product of “specialized knowledge” within the meaning of Mil.R.Evid. 702. See United States v. Meeks, 35 MJ 64, 68 (CMA 1992). We hold that the military judge did not abuse his discretion by permitting LCpl Day to testify as an expert because LCpl Day had training and experience “beyond the ken of the average court member.” United States v. Stark, supra. We turn next to the hearsay testimony on which LCpl Day’s opinion was based in part, and which he repeated to the court members. Appellant argues that the prosecution used LCpl Day to “smuggle” inadmissible hearsay into the courtroom. He further argues that the military judge gave the members the impression that LCpl Day’s testimony “was more credible and authoritative than that of the eyewitnesses to the accident[,] ... thereby allowing the Government to present cumulative and redundant testimony to unfairly and prejudicially buttress its case.” Final Brief at 7-8. The Government argues that the military judge’s instruction to the members that they were “not required to accept the testimony of an expert witness or give it more weight than the testimony of an ordinary witness” was sufficient to preclude any unfair bolstering of the eyewitness testimony. Final Brief at 9-10. Mil.R.Evid. 703 provides that the facts relied upon by the expert “need not be admissible in evidence.” Under Mil.R.Evid. 703, “an expert’s opinion may be based upon personal knowledge, assumed facts, documents supplied by other experts, or even listening to the testimony at trial.” United States v. Raya, 45 MJ 251, 253 (1996), citing Houser, supra at 399. Mil.R.Evid. 705 provides, “The expert may in any event be required to disclose the underlying facts or data [on which the expert opinion is based] on" }, { "docid": "17135906", "title": "", "text": "Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523 (1988). . See United States v. King, 35 MJ 337 (CMA 1992); United States v. Stinson, 34 MJ 233 (CMA 1992); United States v. Rhea, 33 MJ 413 (CMA 1991); United States v. Stark, 30 MJ 328 (CMA 1990). . For example, Mil.R.Evid. 702 allows expert testimony whenever it \"will assist the trier of fact.” See, e.g., United States v. Stinson and United States v. Stark, both supra; United States v. Hammond, 17 MJ 218 (CMA 1984). Mil. R.Evid. 703 \"expands the bases upon which expert opinion may rest.” S. Saltzburg, L. Schinasi, & D. Schlueter [hereafter Saltzburg], Military Rules of Evidence Manual 738 (3d ed. 1991) (Editorial Comment); United States v. Hammond, supra. Also barriers to expert opinion, such as the ultimate-issue rule, have been abolished. Mil.R.Evid. 704; United States v. Hill-Dunning, 26 MJ 260 (CMA), cert. denied, 488 U.S. 967, 109 S.Ct. 494, 102 L.Ed.2d 531 (1988). Finally, in limited circumstances \"the underlying facts or data” may be disclosed. Mil.R.Evid. 705; United States v. Jones, 26 MJ 197, 200 (CMA 1988). . See, e.g., United States v. Partyka, 30 MJ 242 (CMA 1990); United States v. Neeley, 25 MJ 105 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Petersen, 24 MJ 283 (1987); United States v. Cameron, 21 MJ 59 (CMA 1985). . United States v. Partyka and United States v. Neeley, both supra; Saltzburg, supra at 439 (Editorial Comment). . United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir.1989); United States v. Gillespie, 852 F.2d 475 (9th Cir.1988); United States v. Khan, 787 F.2d 28 (2d Cir.1986); United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir.1983); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983); State v. Percy, 146 Vt. 475, 507 A.2d 955 (1986); Sloan v. State, 70 Md.App. 630, 522 A.2d 1364 (1987). . The government tactic was to use a simple syllogism (major premise, minor premise, and conclusion) to persuade the members that appellant was a" }, { "docid": "7445885", "title": "", "text": "not be ‘an outstanding practitioner,’ but only someone who can help the jury.” United States v. Mustafa, 22 MJ 165, 168 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Ms. McIntyre’s formal education and practical experience clearly qualified her as an “expert” within the meaning of Mil.R.Evid. 702. Accordingly, we hold that the military judge did not abuse his discretion by permitting Ms. McIntyre to testify as an expert. Turning to the second issue, we hold that the military judge did not abuse his discretion by permitting Ms. McIntyre to opine about appellant’s prognosis for rehabilitation. Her formal education and practical experience with child abusers qualified her to render such an opinion. See United States v. Stark, supra (forensic psychologist qualified to testify about impact of child abuse even though his area of expertise was child-witness credibility). When the military judge questioned Ms. McIntyre regarding the basis for her prognosis, her responses clearly demonstrated “substan tive knowledge ... beyond the ken of the average court member.” Id. at 330. Regarding the third issue, we note that Ms. McIntyre did not interview appellant and knew little about his background. An interview with a person is not a condition precedent to admissibility of testimony about that person. Barefoot v. Estelle, 463 U.S. 880, 903-04, 103 S.Ct. 3383, 3399-400, 77 L.Ed.2d 1090 (1983); United States v. Hammond, 17 MJ 218 (CMA 1984). Lack of personal contact with the person goes to weight, not admissibility. Commenting on psychiatric predictions of future dangerousness in a capital murder case, the Supreme Court in Barefoot observed: All of these professional doubts about the usefulness of psychiatric predictions can be called to the attention of the jury. Petitioner’s entire argument ... is founded on the premise that a jury will not be able to separate the wheat from the chaff. We do not share in this low evaluation of the adversary process. 463 U.S. at 899 n. 7, 103 S.Ct. at 3398 n. 7. In appellant’s case the defense effectively used cross-examination and argument to highlight the shortcomings in Ms. McIntyre’s prognosis. The" }, { "docid": "12116173", "title": "", "text": "from the Federal Rule without change,” except as to a different subsection from the one relevant here. Manual, supra at A22-51 (Change 2). In the absence of any indication that the drafters’ intent was, nonetheless, for a different meaning and application, the same requirement should be ascribed to the military rule as to the federal rule. See United States v. Powell, 22 MJ 141,143 (CMA 1986); S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual (hereafter Saltzburg) 843 (3d ed. 1991). 10. Trial counsel’s written brief in support of admissibility of Bergendahl’s out-of-court statements refers to the efforts to obtain his live appearance (he was under travel restrictions in Honduras pending completion of his appeal of his conviction there) but made no mention of any effort to obtain his testimony by deposition. Appellate Exhibit II at 1. Responding to a defense objection in this connection and the military judge’s inquiry as to whether any steps had been taken to obtain a deposition, trial counsel represented that Bergendahl had orally told counsel “that he would not be willing to make any statements within” Honduras because it might “affect his case” there. The military judge’s ruling that the witness was unavailable under Mil.R.Evid. 804(a) addressed the Government’s efforts to secure Bergendahl’s attendance at trial but did not mention the adequacy of its effort to secure Bergendahl’s testimony via deposition. 11. This Court has stated “that a witness is not ‘unavailable’ ” for hearsay-evidence purposes unless the proponent “has exhausted every reasonable means to secure” the witness’ testimony. United States v. Burns, 27 MJ 92, 97 (1988). Usually, a mere refusal of a witness to cooperate fails this standard. Cf. United States v. Ortiz, 35 MJ 391 (CMA 1992); United States v. Ferdinand, 29 MJ 164 (CMA 1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990); United States v. Cokeley, 22 MJ 225 (CMA 1986). 12. I recognize that a judicial order to Bergendahl to submit to a deposition would not have been enforceable in Honduras, cf. United States v. Hampton, 33 MJ 21 (CMA 1991). While" }, { "docid": "23579249", "title": "", "text": "In Carter, the Government qualified an expert on the treatment of rape victims to testify on “rape trauma syndrome,” as a type of post-traumatic stress disorder (PTSD). The expert testified that she diagnosed the victim as having PTSD and the victim manifested rape trauma syndrome. See 22 MJ 771, 772 (ACMR 1986). In United States v. Reynolds, 29 MJ 105, 111 (CMA 1989), we held that “the plain rule of law is that an expert’s testimony concerning ‘rape-trauma syndrome’ ” was admissible. In United States v. Peel, 29 MJ 235, 241 (CMA 1989), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990), we held it was permissible for an expert to testify that the victim’s failure immediately to report the crime “was not inconsistent behavior for a rape victim” and that a victim may act as if the rape never happened. Occasionally, this evidence has been limited to presentation by rebuttal. See, e.g., People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 459, 681 P.2d 291, 300 (1984); United States v. Peel, supra (evidence introduced in response to cross-examination of victim); United States v. Carter, supra (evidence introduced during Government’s rebuttal). In a parallel area, child sexual abuse, we have permitted experts to testify about the behavior of child victims of sexual abuse. See, e.g., United States v. Suarez, 35 MJ 374, 376 (CMA 1992) (why a child may render inconsistent statements, recant allegations, fail to report or delay reporting abuse); United States v. Nelson, 25 MJ 110 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988). Such testimony assists jurors in disabusing themselves of widely held misconceptions. Likewise, where there is a long-term relationship between the suspect and the victim, he or she is less likely to report the crime or appear upset. See People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 890, 552 N.E.2d 131, 138 (1990). Thus rape-trauma-syndrome testimony by a properly qualified expert may be ad missible to assist the trier of fact to understand the evidence. While in some cases it may be preferable that the" }, { "docid": "23579248", "title": "", "text": "was an expert. B. Subject Matter of Expert Testimony Mil.R.Evid. 702 provides that the expert testimony is admissible when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Mil.R.Evid. 702 is a very liberal standard. As was said regarding its twin Fed.R.Evid. 702: “[T]he test is not whether the jury could reach some conclusion in the absence of the expert evidence, but whether the jury is qualified without such testimony ‘to determine intelligently and to the best possible degree the particular issue without enlightment from those having a specialized understanding of the subject____State v. Chapple, 135 Ariz. 281, 292-93, 660 P.2d 1208, 1219-20 (1983), quoted in P. Giannelli and E. Imwinkelried, Scientific Evidence § 5-2 at 152 (1986). Our analysis would not be complete without a review of our prior case law. In United States v. Carter, 26 MJ 428 (1988), we held that “rape-trauma syndrome evidence is probative ... on the issue of consent by the victim____” Id. at 429. In Carter, the Government qualified an expert on the treatment of rape victims to testify on “rape trauma syndrome,” as a type of post-traumatic stress disorder (PTSD). The expert testified that she diagnosed the victim as having PTSD and the victim manifested rape trauma syndrome. See 22 MJ 771, 772 (ACMR 1986). In United States v. Reynolds, 29 MJ 105, 111 (CMA 1989), we held that “the plain rule of law is that an expert’s testimony concerning ‘rape-trauma syndrome’ ” was admissible. In United States v. Peel, 29 MJ 235, 241 (CMA 1989), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990), we held it was permissible for an expert to testify that the victim’s failure immediately to report the crime “was not inconsistent behavior for a rape victim” and that a victim may act as if the rape never happened. Occasionally, this evidence has been limited to presentation by rebuttal. See, e.g., People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 459, 681 P.2d 291, 300 (1984); United States v. Peel," }, { "docid": "17135905", "title": "", "text": "(4) Dr. Underwager challenged the examination methods used in the McCann study and the Cantwell study group. (5) In response to the question, \"[W]ould a finding of 9 millimeters or between 10 and 15 millimeters [of the introital opening (the external size of the vaginal orifice) ] be significant based upon [his] reading of those studies?[,]” Dr. Underwager answered in the negative but did not state what that significance would be. . As already noted, the judge admitted the book, The Secret, into evidence over defense objection. See n. 1, supra. . See, e.g., White v. Illinois, -U.S., -, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Romey, 32 MJ 180 (CMA 1990), cert. denied, — U.S.--, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991); United States v. Ferdinand, 29 MJ 164 (CMA 1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990); Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523 (1988). . See United States v. King, 35 MJ 337 (CMA 1992); United States v. Stinson, 34 MJ 233 (CMA 1992); United States v. Rhea, 33 MJ 413 (CMA 1991); United States v. Stark, 30 MJ 328 (CMA 1990). . For example, Mil.R.Evid. 702 allows expert testimony whenever it \"will assist the trier of fact.” See, e.g., United States v. Stinson and United States v. Stark, both supra; United States v. Hammond, 17 MJ 218 (CMA 1984). Mil. R.Evid. 703 \"expands the bases upon which expert opinion may rest.” S. Saltzburg, L. Schinasi, & D. Schlueter [hereafter Saltzburg], Military Rules of Evidence Manual 738 (3d ed. 1991) (Editorial Comment); United States v. Hammond, supra. Also barriers to expert opinion, such as the ultimate-issue rule, have been abolished. Mil.R.Evid. 704; United States v. Hill-Dunning, 26 MJ 260 (CMA), cert. denied, 488 U.S. 967, 109 S.Ct. 494, 102 L.Ed.2d 531 (1988). Finally, in limited circumstances \"the underlying facts or" }, { "docid": "7149201", "title": "", "text": "107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Cf. United States v. Farrar, 28 MJ 387 (CMA 1989). A proffered expert “need not be ‘an outstanding practitioner,’ but need only be a person who can help the” members. S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual, 589 (2d ed.1986) (citing United States v. Barker, 553 F.2d 1013 (6th Cir.1977)). See also United States v. Hammond, 17 MJ 218 (CMA 1984). Whether a witness is competent to give expert testimony is a matter falling within the discretion of the military judge. United States v. Mustafa, supra. While Dr. Peters did not specialize in the clinical treatment of the impact of child sexual abuse, his broader discipline of child-witness credibility certainly included studying child sexual abuse. By the same token, as Dr. Peters indicated, because his discipline was broader, he may have been able to bring objective findings that a clinician dealing solely with victim impact might miss. It was sufficient that the subject of victim impact was within Dr. Peters’ specialized knowledge of forensic psychology and child witnesses. United States v. Peel and United States v. Hammond, both supra; cf. United States v. Gilliss, 645 F.2d 1269, 1278 (8th Cir.1981). The military judge did not abuse his discretion in allowing Dr. Peters to testify as an expert, and the members properly were allowed to give whatever weight they felt justified to Dr. Peters’ expert qualifications. We also hold that the basis for Dr. Peters’ expert testimony was sufficient under Mil.R.Evid. 703. He conducted personal interviews with the two child victims, as well as with their father. He also observed the children in other videotaped interviews and at trial. Cf. United States v. Hammond, supra at 219 (expert testifying on the after effects of rape had sufficient basis for testimony by observing victim at trial). In light of the sufficient basis and defense counsel’s own vigorous cross-examination, the members were properly left to attach whatever weight they felt appropriate to Dr. Peter’s expert opinions. The decision of the United States Air Force Court of Military Review is affirmed. Chief Judge" }, { "docid": "11289876", "title": "", "text": "227 (CMA), cert. denied, 476 U.S. 1108, 106 S.Ct.1956, 90 L.Ed.2d 364 (1986). Appellant gets no relief by relying on Mil.R.Evid. 403. The military judge expressly considered whether the books offered a greater risk of unfair prejudice to appellant than they offered as probative value to the prosecution. His reasoning was logical; we shall not disturb it under circumstances where the evidence was so carefully handled both by the military judge and by the prosecution. See United States v. Orsburn and United States v. Mann, both supra. III Appellant’s next allegation of trial error concerns testimony of Major Nancy Slicner, a clinical psychologist who was accepted as an expert “with specialized knowledge” in the field of sexual offenders and sexual abuse victims. In the part relevant to this issue, Slicner testified concerning the concept of parental duress in cases of incest. Essentially, appellant’s trial objection was “that her testimony is without adequate scientific foundation under M[il]RE[vid.] 702, and lacks any relevance to any issue in the Government’s case-in-chief under M[il]RE[vid.] 401 and 402.” In response specifically to the objection under Mil.R.Evid. 702, trial counsel argued: [I]t’s the United States’ contention that it’s incorrect to focus on simply the scientific or technical knowledge aspects of an expert witness’ area of focus, that Rule 702 reads, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Citing United States v. Snipes, 18 MJ 172 (CMA 1984), and United States v. Arruza, 26 MJ 234 (CMA 1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989), trial counsel urged that Slicner’s testimony did not need “a scientific or technical basis” to be admissible; rather, those cases, he argued, acknowledge that experts with experience in the area of child sex abuse and its victims “have specialized knowledge and experience that can be helpful to the trier of fact.” Ultimately, the military judge overruled" }, { "docid": "1190994", "title": "", "text": "a rule would be impractical in the extreme, particularly in a case in which the eventual accused at trial is not identified as a suspect until a considerable period of time has passed following discovery of the crime. 28 MJ at 1028. We agree. In so ruling, however, we do not indulge in semantics. Although the vehicle most certainly was a “crime scene” as described by the court, it also contained the type of evidence to which an accused should have reasonable access for examination. Art. 46, UCMJ, 10 USC § 846. There were at least five crucial pieces of evidence obtained from the forensic inspection of the vehicle, including: two varieties of “blood spatters,” see United States v. Mustafa, 22 MJ 165 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986); human hair samples; semen samples; and a shoe-sole print found on the car window. In turn, expert testimony was offered by the Government concerning each of these crucial pieces of evidence. Indeed, the vehicle itself had evidentiary value. For example, the location of prints and blood spatters gave forensic clues as to how the crime was committed. Notwithstanding the obvious need that anyone involved in the investigation of this homicide have access to this vehicle, no new “rules of law” need be created to mandate that result or to authorize the police to release a vehicle — or any other evidence. Sufficient tools to resolve the case are already available. Importantly, at the time the vehicle was released, appellant had been arrested and counsel had been “detailed” to represent him. In other words, there were no compelling circumstances which dictated the immediate release of the vehicle to the victim’s husband without at least notifying appellant and his representatives and giving them a reasonable chance to inspect the automobile. Cf. United States v. Garries, 22 MJ 288 (CMA), cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986). However, despite the fairness and equity of permitting the defense to have the opportunity to inspect the vehicle, we acknowledge that appellant enjoys no constitutional" }, { "docid": "12133996", "title": "", "text": "THAT THE UNDERLYING THERAPY TECHNIQUES THEY RELIED UPON IN REACHING THEIR CONCLUSIONS WERE RELIABLE. On the basis of the record before us, we decline to decide these related legal questions without further review by the Court of Military Review. United States v. Baran, 22 MJ 265, 267 (CMA 1986). The first granted issue, concerning ineffective assistance of counsel, requires answers to certain factual questions which are not clear from the record before us. First, what were the reasons that defense counsel failed to object to admission of “play therapy” evidence used by government witnesses in this case to conclude that a child had been sexually abused? See United States v. Gipson, 24 MJ 246, 252 (CMA 1987) (general “acceptance in the scientific community” is “not the test” but “is a factor” in deciding admissibility of expert opinion). Compare Nelson v. Farrey, 874 F.2d 1222, 1225 (7th Cir.1989) (dictum) (“ ‘Play therapy’ is an established technique for obtaining information about the feelings and problems of young children.”), cert. denied, 493 U.S. 1042, 110 S.Ct. 835, 107 L.Ed.2d 831 (1990), with Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 834 (1992) (“testimony about the uniformity of behaviors exhibited by sexually abused children is not sufficiently established to have gained general acceptance in the particular field in which it belongs”), and United States v. Gillespie, 852 F.2d 475, 481 (9th Cir.1988) (evidence of scientific reliability of “play therapy” technique required). Second, what were the reasons that defense counsel failed to request funds for or the services of an expert witness in the preparation of appellant’s defense? United States v. Garries, 22 MJ 288 (CMA), cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986). In this regard we note defense counsel’s ambiguous statement to the members that “it would have been great for us to have been able to put some experts on, but for financial reasons we weren’t able to do that.” Third, what were the reasons for defense counsel’s statement during closing argument on sentencing “that an illness of the mind then compelled [appellant] to do these things”?" }, { "docid": "10927830", "title": "", "text": "testify on the alleged victim’s behavior in striving for “a return to normalcy” and in acting as if the rape had never happened. ( Mil.R.Evid. 702 defines an expert as one whose testimony can “assist the trier of fact to understand the evidence or determine a fact in issue.” United States v. Mustafa, 22 MJ 165 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Under this definition admissibility of expert testimony has been broadened. Indeed, anyone who has substantive knowledge in a particular field which exceeds that of the average court member arguably is an expert within that field; and the type of qualification within that field that the witness possesses goes to the weight to be given the testimony and not to its admissibility. The court members had to determine whether the behavior of the victim, Airman Curtis, was consistent with that of an individual who had been recently raped. Certainly Tuttle’s testimony could assist the members in reaching this\" determination. As the Court of Military Review observed, the record of trial clearly establishes that this witness had specialized training and experience in counseling rape victims as well as in crisis intervention; and this would appear to give him the status required of an expert under Mil.R.Evid. 702. See United States v. Reynolds, 29 MJ 105 (CMA 1989); United States v. Carter, 26 MJ 428, 429 (CMA 1988). Furthermore, he was not asked to testify as to his opinion about a hypothetical victim but instead testified about Airman Curtis, whom he had observed. The military judge properly ruled that he was an expert and admitted his testimony. United States v. Mustafa, supra; United States v. Hammond, 17 MJ 218 (CMA 1984). IV Whether The Military Judge Was Required To Instruct On Reasonable Mistake of Fact. Ms. Bishop testified that appellant invited her to come over to his house for a couple of hours during the middle of the day. They had some wine and kissed. However, when appellant made further advances, she told him to stop; said she thought she should leave; and picked" }, { "docid": "10927829", "title": "", "text": "large part because most of his experience had been in counseling child victims of incest, rather than adult rape victims. However, the military judge accepted him “as an expert witness on the subject of crisis intervention and rape counseling.” Appellant still contends that Lieutenant Colonel Tuttle was not qualified to testify as an expert under Mil.R.Evid. 702. The defense position is that, although Tuttle may have been extremely well qualified to discuss adult-behavior patterns of people who had been incest victims as a child, he had practically no experience with victims who had been raped as adults, and he had received no training in this field for at least 5 years. Therefore, Tuttle “simply was not qualified to explain why Airman Curtis ‘normalized’ her relationship with appellant after this incident.” After being accepted as an expert, Lieutenant Colonel Tuttle testified that, in his professional opinion, it was not inconsistent behavior for a rape victim not to immediately report the offense. Cf. United States v. Nelson, 25 MJ 110 (CMA 1987). The expert was permitted to testify on the alleged victim’s behavior in striving for “a return to normalcy” and in acting as if the rape had never happened. ( Mil.R.Evid. 702 defines an expert as one whose testimony can “assist the trier of fact to understand the evidence or determine a fact in issue.” United States v. Mustafa, 22 MJ 165 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Under this definition admissibility of expert testimony has been broadened. Indeed, anyone who has substantive knowledge in a particular field which exceeds that of the average court member arguably is an expert within that field; and the type of qualification within that field that the witness possesses goes to the weight to be given the testimony and not to its admissibility. The court members had to determine whether the behavior of the victim, Airman Curtis, was consistent with that of an individual who had been recently raped. Certainly Tuttle’s testimony could assist the members in reaching this\" determination. As the Court of Military Review observed, the" }, { "docid": "7149200", "title": "", "text": "long-term effects, defense counsel was able to have Dr. Peters state that — because the sodomy was committed without any physical threats or force; because the children were believed immediately when they reported the incident to their father; and because appellant immediately admitted the offense — the impact was reduced substantially for the boys. Mil.R.Evid. 702 prescribes: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified, as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (Emphasis added.) Under Mil.R.Evid. 702, admissibility of expert testimony has been broadened. Anyone who has substantive knowledge in a field beyond the ken of the average court member arguably is an expert within that field. United States v. Peel, 29 MJ 235, 241 (CMA 1989), cert. denied, — U.S. -, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990); United States v. Mustafa, 22 MJ 165 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Cf. United States v. Farrar, 28 MJ 387 (CMA 1989). A proffered expert “need not be ‘an outstanding practitioner,’ but need only be a person who can help the” members. S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual, 589 (2d ed.1986) (citing United States v. Barker, 553 F.2d 1013 (6th Cir.1977)). See also United States v. Hammond, 17 MJ 218 (CMA 1984). Whether a witness is competent to give expert testimony is a matter falling within the discretion of the military judge. United States v. Mustafa, supra. While Dr. Peters did not specialize in the clinical treatment of the impact of child sexual abuse, his broader discipline of child-witness credibility certainly included studying child sexual abuse. By the same token, as Dr. Peters indicated, because his discipline was broader, he may have been able to bring objective findings that a clinician dealing solely with victim impact might miss. It was sufficient that the subject of victim impact was within Dr. Peters’ specialized knowledge of forensic" }, { "docid": "7149199", "title": "", "text": "offered were based upon his broad expertise involving the effects of stressful events upon children and the literature he had become familiar with on child sexual abuse. Dr. Peters had also viewed videotapes of interviews of the victims'(two boys, a 4-year-old and a 6-year-old), and he conducted personal interviews with the boys and with their father. Dr. Peters testified on direct examination as to the short-term effects of sexual abuse that he had observed as to the two boys. These included an appreciable amount of fear, guilt, and shame. Dr. Peters also surmised that, based upon his expertise and study of the boys, they were “at a higher risk” of suffering from long-term effects of the abuse, such as depression, anxiety, and sexual maladjustment. Defense counsel then conducted nothing short of a commendable cross-examination of the expert witness. Dr. Peters had to acknowledge that some of the short-term effects which he had observed in the boys may have been caused in part by their own parents having gone through a divorce. With regard to the long-term effects, defense counsel was able to have Dr. Peters state that — because the sodomy was committed without any physical threats or force; because the children were believed immediately when they reported the incident to their father; and because appellant immediately admitted the offense — the impact was reduced substantially for the boys. Mil.R.Evid. 702 prescribes: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified, as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (Emphasis added.) Under Mil.R.Evid. 702, admissibility of expert testimony has been broadened. Anyone who has substantive knowledge in a field beyond the ken of the average court member arguably is an expert within that field. United States v. Peel, 29 MJ 235, 241 (CMA 1989), cert. denied, — U.S. -, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990); United States v. Mustafa, 22 MJ 165 (CMA), cert. denied, 479 U.S. 953," }, { "docid": "12126715", "title": "", "text": "1988), cert denied, 488 U.S. 967, 109 S.Ct. 494, 102 L.Ed.2d 531 (1988). Cf. United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986); United States v. Arruza, 26 MJ 234, 237 (CMA 1988); see also 26 MJ at 239 (Sullivan, J., concurring in the result) (agreeing that experts may not give their opinion as to a witness’ truthfulness), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989). We agree with the Court of Military Review that the military judge abused his discretion in granting the Government’s motion to prevent Dr. Grant from testifying. See United States v. Houser, 36 MJ 392, 397 (CMA), cert. denied, — U.S.-, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993). The Military Rules of Evidence liberally allow for expert testimony to assist the trier of fact. Accordingly, the certified issue is answered in the negative. The decision of the United States Air Force Court of Military Review setting aside the conviction for unpremeditated murder and the sentence is affirmed. Chief Judge SULLIVAN and Judges CRAWFORD, GIERKE and WISS concur. . We have addressed the issue of admissibility of expert testimony at length. The analytical model set forth in United States v. Houser, 36 MJ 392 (CMA), cert. denied,-U.S.-, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993), requires that the following be established: (A) the qualifications of the expert, Mil.R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702; (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and 402; (E) the reliability of the evidence, United States v. Gipson, 24 MJ 246 (CMA 1987), and Mil.R.Evid. 401; and (F) whether the \"probative value” of the testimony outweighs other considerations. Mil.R.Evid. 403. . . . Id. at 397. See also United States v. Banks, 36 MJ 150, 161 (CMA 1992). . We need not decide the granted issues." }, { "docid": "7445884", "title": "", "text": "a sentencing hearing, an accused’s potential for rehabilitation is a proper subject of testimony by qualified experts. RCM 1001(b)(5). Appellant contends that the military judge erred by permitting Ms. McIntyre to testify beyond the limits of her expertise. Three issues are raised by his contention: (1) Was Ms. McIntyre qualified to testify as an expert? (2) Was her testimony within the limits of her expertise? and (3) Was her expert opinion based on a sufficient factual basis to make it relevant? Mil.R.Evid. 702, Manual, supra, provides as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Mil.R.Evid. 702 allows “[ajnyone who has substantive knowledge in a field beyond the ken of the average court member” to be qualified as an expert witness. United States v. Stark, 30 MJ 328, 330 (CMA 1990). “The witness need not be ‘an outstanding practitioner,’ but only someone who can help the jury.” United States v. Mustafa, 22 MJ 165, 168 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Ms. McIntyre’s formal education and practical experience clearly qualified her as an “expert” within the meaning of Mil.R.Evid. 702. Accordingly, we hold that the military judge did not abuse his discretion by permitting Ms. McIntyre to testify as an expert. Turning to the second issue, we hold that the military judge did not abuse his discretion by permitting Ms. McIntyre to opine about appellant’s prognosis for rehabilitation. Her formal education and practical experience with child abusers qualified her to render such an opinion. See United States v. Stark, supra (forensic psychologist qualified to testify about impact of child abuse even though his area of expertise was child-witness credibility). When the military judge questioned Ms. McIntyre regarding the basis for her prognosis, her responses clearly demonstrated “substan tive knowledge ... beyond the ken of the average court member.” Id. at 330. Regarding" }, { "docid": "18953786", "title": "", "text": "decisions of this Court in United States v. Garries, 22 MJ 288, cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986), and United States v. Mustafa, 22 MJ 165, cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986), counsel argue that the military judge abused his discretion in denying his request for an independent criminal investigator. He asserts that his motion “was made at trial as a result of the failure of government investigators (CID special agents) to adequately provide the defense with critical information necessary for the formation of appellant’s defense.” Final Brief at 157. He particularly states: Appellant enumerated three areas to the military judge: 1) The failure of CID to provide the names and locations of all Terminal Taxi Cab Company drivers on duty at the time of Kim Ruggles’ death; 2) the failure of CID to sufficiently coordinate with North Carolina and/or other federal law enforcement agencies, e.g., the Drug Enforcement Agency [sic] (DEA), concerning the existence of a dark colored Lincoln automobile allegedly used in a drug transaction that Kim Ruggles was a party to on the night of her death; and 3) the failure of CID to contact the family, employer, and acquaintances of Tommy D. Arrington, a suspect in both murders who bears a strong resemblance to appellant, to ascertain Arrington’s location on relevant dates. (R. at 159-61; App. Exh. XXXVII.) Final Brief at 157-58. He concludes that “[n]one of the aforementioned areas were adequately investigated by CID.” Final Brief at 158. It is beyond cavil in the military justice system that an accused has a right to investigative assistance at the expense of the Government if he demonstrates the necessity for such assistance. United States v. Robinson, 39 MJ 88 (CMA 1994); United States v. Kelly, 39 MJ 235 (CMA), cert. denied, 513 U.S. 931, 115 S.Ct. 324, 130 L.Ed.2d 284 (1994). In United States v. Gonzalez, 39 MJ 459, 461, cert. denied, 513 U.S. 965, 115 S.Ct. 429, 130 L.Ed.2d 342 (1994), this Court recognized a three-step test for determining necessity, as follows: First, why" }, { "docid": "23579260", "title": "", "text": "defense argument that Dr. Remer’s testimony should be excluded because she had not personally seen or treated the prosecutrix, it seems to me that there is a good deal of logic to the suggestion offered by the Army Court of Military Review in United States v. Carter, 22 MJ 771, 773 n. 3 (1986), that reflects the contrary view as follows: We believe the better practice would be to have the treating medical personnel testify as to the victim’s emotional, physical and mental state and have another individual, properly qualified as an expert, testify as to the various aspects of rape trauma syndrome and whether the victim’s symptoms are consistent with rape trauma syndrome. Such an expert, appropriately distanced from the alleged victim, is in a position to offer truly objective assistance for the fact-finders, with a substantially reduced risk of a subconscious suggestion creeping into the testimony that the expert believes the victim. By \"rebuttal,\" the principal opinion apparently means both the prosecution’s case in rebuttal, following the defense's case-in-chief, as well as testimony during the prosecution's case-in-chief that follows — and rebuts — evidence elicited during cross-examination by the defense. See United States v. Peel, 29 MJ 235, 240 (CMA 1989), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990). GIERKE, Judge (concurring in the result): I agree with the principal opinion that if placed in a proper, limited framework, expert testimony on the rape trauma syndrome is admissible to aid the factfinder in understanding the evidence and to rebut any misconceptions about a rape victim’s behavior. See United States v. Suarez, 35 MJ 374 (CMA 1992). However, I take exception to the principal opinion’s conclusion that Dr. Remer’s expert testimony was placed into a proper framework by the Government. In my opinion, Dr. Remer was allowed to go too far in expressing her opinion that if certain behavioral conduct was present a rape took place. Considering the fact that this behavioral conduct matched that attributed to the victim, this conclusion was unfairly prejudicial, not very probative, and very misleading. Mil. R.Evid. 403, Manual for" } ]

[ { "docid": "23034707", "title": "", "text": "144, 169-70, 90 S.Ct. 1598, 1614-15, 26 L.Ed.2d 142 (1970)); see Praprotnik, 108 S.Ct. at 925-26. Following, this teaching, courts have established two requirements for plaintiffs to meet in maintaining a § 1983 action grounded upon an unconstitutional municipal custom. First, the custom or practice must be attributable to the municipality. In other words, it must be so well-settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice. See Spell v. McDaniel, 824 F.2d 1380, 1386-88 (4th Cir.), cert. denied, — U.S. -, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988); see also Praprotnik, 108 S.Ct. at 925-26; Tuttle, 471 U.S. at 818-20, 105 S.Ct. at 2433-35; Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). Second, the custom must have been the cause of and the moving force behind the deprivation of constitutional rights. See Tuttle, 471 U.S. at 819, 105 S.Ct. at 2434; Monell, 436 U.S. at 694-95, 98 S.Ct. at 2037-38; Kibbe, 111 F.2d at 809-10; see also City of Canton, — U.S. at -, 109 S.Ct. at 1206; Annotation, What Constitutes Policy or Custom for Purposes of Determining Liability of Local Government Unit under 42 U.S.C. § 1983 — Modern Cases, 81 A.L.R.Fed. 549, 561-66, 571-83 (1987) (collecting and assessing various municipal policy/custom cases) [hereinafter Annotation, § 1983 \\ We believe the evidence, when viewed in plaintiffs’ favor, meets both requirements. 1. Existence of the Custom. Testimonial evidence from Sergeant Ferullo showed that the Everett Police Department had a longstanding, wide-spread, and facially unconstitutional practice of breaking down doors without a warrant when arresting a felon. Based upon his uncontrovert-ed testimony and inferences reasonably drawn therefrom, the jury could have found that: —The sergeant had been present at either “about 20 or 30” or “50, 60” situations involving door breakdowns over his 24-year tenure as a police officer. —A 12-pound sledge hammer was provided by the City of Everett for use in breaking down doors. —Numerous" } ]

[ { "docid": "22847127", "title": "", "text": "489 (11th Cir.1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998)). In order for a plaintiff to demonstrate a policy or custom, it is “generally necessary to show a persistent and wide-spread practice.” Id. (internal quotations and citations omitted). See also, Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir.1994). This threshold identification of a custom or policy “ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted, legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Brown, 520 U.S. 403-04, 117 S.Ct. 1382 (citations omitted). This prevents the imposition of liability based upon an isolated incident. See Depew v. City of St. Marys, 787 F.2d 1496 (11th Cir.1986) (“Normally, random acts or isolated incidents are insufficient to establish a custom or policy”). Rather, the incident must result from a demonstrated practice. See Wayne, 197 F.3d at 1106 (determining that a single decision, “even if erroneous, would not support the inference that the County had a custom or policy” in place). Based on these instructions, McDowell must establish that De-Kalb’s policy was to understaff the field division, and that this practice left the division unable to execute medical transports. The Sheriff and the Sheriffs Office of Dekalb County are responsible for the County’s law enforcement functions. The Board of Commissioners of Dekalb County (the “Board”) approves the Sheriffs Office budget. To demonstrate the Jail’s routine understaffing practices, McDowell points to the testimony of numerous Sheriffs Office employees claiming that the Jail lacked adequate manpower. Indeed, the chief of jail operations, Dennis Cheatham, testified in his deposition that despite Sheriffs Office requests for additional personnel, other priorities often took precedent. Moreover, the Jail’s former health services coordinator explained that transporting inmates between the Jail and Grady was a “continual problem,” which he “constantly [tried] to correct and amend.” Although McDowell produced evidence that the Jail had staffing problems, the record provides no evidence that the field division consistently failed to transport non-emergency eases to Grady. Additionally, the" }, { "docid": "18590357", "title": "", "text": "this motion as well. II The City of St. Marys contends that the evidence was insufficient to support the jury’s verdict which was based on a finding of custom or policy on the part of the city resulting in plaintiffs’ injuries. When considering the sufficiency of the evidence, this court must consider the evidence in a light most favorable to the plaintiffs and give them the benefit of all inferences which the evidence supports. This court must affirm unless it is convinced that there is a complete absence of probative evidence supporting the verdict or that the evidence so overwhelmingly supports the city that reasonable men in the exercise of impartial judgment could not render a verdict against it. Section 1983 generally makes every person liable for conduct which deprives any citizen of the United States of any right, privilege or immunity secured by the Constitution. 42 U.S.C. § 1983 (1982). For purposes of this statute, municipalities are persons. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Section 1983 provides a fault-based analysis for imposing municipal liability; therefore, plaintiffs must establish that the city was the person who caused them to be subjected to their deprivation. To establish a policy or custom, it is generally necessary to show a persistent and wide-spread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the municipality. Normally random acts or isolated incidents are insufficient to establish a custom or policy. Bennett v. City of Slidell, 728 F.2d 762, on rehearing, 735 F.2d 861 (5th Cir.1984) {en banc). However, the custom need not receive formal approval. Monell, 436 U.S. at 691, 98 S.Ct. at 2036. In this case, while the city provided rules and regulations for the operation of its police department, these rules were violated on numerous occasions. The city, however, failed to rectify the situation. The evidence revealed several incidents involving the use of unreasonable and excessive force by police officers. Therefore, the city had knowledge of improper police conduct, but failed to take proper remedial" }, { "docid": "1506256", "title": "", "text": "custom or policy in the context of § 1983 liability is applicable to whether it can be held liable under § 1981. Defendants argue Singer may not recover against the School District under § 1983 because he has faded to show that the District maintained a custom of discriminatory personnel practices. Singer responds a reasonable inference can be drawn that there was a widespread practice or custom to discriminate because officials of the School District observed Cordova’s anti-Semitic conduct and failed to take prompt effective remedial action to stop such discrimination and harassment. In Randle, the court held the plaintiffs “failure to allege the existence of similar discrimination as to others seriously undermines her claim that the City maintained a custom of discriminatory personnel practices.” Randle, 69 F.3d at 447. A custom requires the illegal practice to be “wide spread,” i.e involving a “series of decisions.” See City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988); Melton v. City of Oklahoma City, 879 F.2d 706, 725 n. 26 (10th Cir.1989) (distinguishing the facts from Praprotnik on the grounds that Melton had offered evidence that the City had acted similarly against another person and, was therefore potentially able to show the existence of a custom), modified on other grounds, 928 F.2d 920, 922 (10th Cir.) (en bane), cert. denied, 502 U.S. 906, 112 S.Ct. 296, 297, 116 L.Ed.2d 241 (1991). Here, based on the incidents of discrimination alleged by Singer (which were all directed against him), Singer has failed to establish a genuine dispute of material fact about whether the School District had a custom of discriminatory employment practices. See Randle, 69 F.3d at 447. Defendants further argue Cordova was not a “final policymaker” and therefore the School District cannot be held liable for his actions under § 1983. If an official who possesses final policymaking authority in a certain area makes a decision, that decision constitutes municipal policy for § 1983 purposes and will be understood as an act which the municipality officially sanctioned. Id. at 447. The question of whether" }, { "docid": "10632400", "title": "", "text": "a cause of action. (D.E. No. 39). This Court finds that Count II sufficiently states a cause of action. In order for a municipality to be held liable under 42 U.S.C. § 1983 for the actions of an employee, the plaintiff must show that “the injury caused was a result of a municipal policy or custom.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir.2009). An action does not need to be official in nature in order to constitute a municipal policy or custom. St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). The Eleventh Circuit recognizes that “a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it.” Brown v. City of Fort Lauderdale, 928 F.2d 1474, 1481 (11th Cir.1991). Therefore, if a city is “aware [of] a pattern of constitutional violations” and fails to “provide adequate training,” then it is found to be “deliberately indifferent” and it is liable under 42 U.S.C. § 1983. Lewis, 561 F.3d at 1293. In order to bring a claim of deliberate indifference against a city, a plaintiff must be able to point to “other incidents involving similar facts.” Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005). In Depew v. City of St. Marys, 787 F.2d 1496 (11th Cir.1986), the plaintiff established a pattern of constitutional violations by presenting four other instances in which the police used excessive force that were not sanctioned by the city. Depew, 787 F.2d at 1501. In Rivas v. Figueroa, No. 11-23195-Civ, 2012 WL 1378161 (S.D.Fla. April 20, 2012), the plaintiff alleged sixteen instances in which police officers had used excessive force without disciplinary repercussions, and the court found that this was enough, at the pleading stage, to bring a claim against the city for deliberate indifference. Rivas, 2012 WL 1378161, at *3. Here, Plaintiff has alleged thirty-eight instances of Fourth Amendment violations by Miami Beach police officers that involved the use of excessive force without official repercussions. (D.E. No. 29" }, { "docid": "22838938", "title": "", "text": "City workers aided state employees in carrying out that decision. The plaintiffs allege a constitutional violation in the failure to return to the homeless any personal belongings that were removed but not destroyed, but the uncontroverted evidence at the hearing was that these items are, and have always been, in the possession of the State, not the City. ii. Pervasive Practice or Custom The plaintiffs also have failed to show a substantial likelihood of success under the “practice or custom” approach. In Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.1986), this Court held that to establish a practice or custom: it is generally necessary to show a persistent and widespread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the municipality. Normally random acts or isolated incidents are insufficient to establish a custom or policy. In Depew, a police brutality case, we upheld a jury verdict for the plaintiffs on the basis of approximately five prior incidents of excessive force. We held that “while the mayor and [city] council members were aware of prior complaints of excessive force, they continued to assert that the department’s supervision was satisfactory and that the officers were doing a good job.” Id. at 1498. ' Because “the city had knowledge of improper police conduct, but failed to take proper remedial action,” id. at 1499, the jury could legitimately infer that the city “had implicitly ratified a custom or policy permitting the police to use excessive force against its citizens,” id. at 1501. In Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir.1987), another police brutality case, we explained that: A municipality’s failure to correct the constitutionally offensive actions of its police department may rise to the level of a “custom or policy” if the municipality tacitly authorizes these actions or displays deliberate indifference towards the police misconduct. We reversed the district court’s judgment for the plaintiff, holding that “[q]uite simply, there [was] no evidence that city officials were aware of past police misconduct.” Id. Here, with the exception of the eviction of" }, { "docid": "2584967", "title": "", "text": "at 1205 n. 10, 103 L.Ed.2d at 427 n. 10 (citing the obvious need to train officers with respect to the constitutional limitations on the use of deadly force). Young’s claims do not fit within this category. See id. at 396-97, 109 S.Ct. at 1209, 103 L.Ed.2d at 432 (observing that contentions “that police officers were inadequately trained in diagnosing the symptoms of emotional illness — falls far short of the kind of ‘obvious’ need for training that would support a finding of deliberate indifference to constitutional rights on the part of the city”) (O’Connor, J., concurring in part and dissenting in part). Alternatively, the need for more or better training may be obvious where a pattern of constitutional violations exists such that the municipality knows or should know that corrective measures are needed. Belcher v. City of Foley, Ala., 30 F.3d 1390, 1397-98 (11th Cir.1994). This court has therefore held that, [ t]o prove § 1983 liability against a municipality based on custom, a plaintiff must establish a widespread practice that, “although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a ‘custom or usage’ with the force of law[.]” In other words, a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it. Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (citations omitted); see also City of Oklahoma City, 471 U.S. at 828-24, 105 S.Ct. at 2436, 85 L.Ed.2d at 804 (where a § 1983 claim turns on the failure of an officer to comply with an express, constitutional policy, proof of more than a single incident will be necessary to establish both the requisite municipal fault and the causal connection between the practice and the constitutional deprivation). The record in this case reveals that Young is not the only City inmate who has complained of a lack of adequate treatment for serious medical problems stemming from mental illness. Furthermore, the alleged mistreatment and omissions suffered by Young occurred over a period" }, { "docid": "23275955", "title": "", "text": "independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). Having found that Okin raises a genuine issue of material fact as to whether the individual defendants of the Village of Cornwall-on-Hudson violated her due process rights, we now consider the question whether she raises a genuine issue of fact as to the municipal liability of the Village. A municipality may be found to have a custom that causes a constitutional violation when “faced with a pattern of misconduct!, it] does nothing, compelling the conclusion that [it] has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.2007); see also Sorlucco v. New York City Police Dep’t., 971 F.2d 864, 871 (2d Cir.1992) (municipal liability can be established “by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers”); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (finding that “a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it”). Okin’s claim of municipal liability, although focused on the Village’s alleged failure-to-train, is fairly construed to articulate a claim that the Village had a custom whereby it acquiesced in unconstitutional conduct by its officers. The record shows more than a dozen contacts between Okin and the Village, that involved a number of officers, including high-ranking officials like Sergeant Weber and Captain Williams, and that recurrently concerned complaints of domestic violence. These incidents suggest a consistent pattern of failing to adequately respond to Okin’s complaints, to implement the New York mandatory arrest statute, to interview the alleged abuser, or to file domestic incident reports, a pattern which may have encouraged further violence. We therefore find sufficient evidence in the record to create a genuine issue of fact as to whether the officers’ conduct indicates a practice, tacitly endorsed by the Village, that “was so ‘persistent or widespread’ as to constitute ‘a custom or usage with the force of law.’ ” Patterson v. County" }, { "docid": "15865977", "title": "", "text": "pursuant to an official “custom” or “policy” of the Cobb County Police Department. See Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir.1991); Fundiller v. Cooper City, 777 F.2d 1436 (11th Cir.1985). The United States Supreme Court.has set forth a three-part test for determining whether the acts of a public employee subjects the governmental entity to liability: 1) the entity officially sanctioned or ordered the act; 2) the actor was an official with final policymaking authority; or 3) the action was taken pursuant to a policy adopted by officials responsible under state law for making policy in that area. Pembaur, 475 U.S. at 480-183, 106 S.Ct. 1292. Plaintiff has failed to present sufficient evidence that Cobb County should be liable under any of these circumstances. He has failed to show that the County officially sanctioned or ordered any of the actions taken by Officer Worley, and he has failed to show that Officer Worley had final policymaking authority for the county. Finally, he has failed to show that Officer Worley’s actions were taken pursuant to any policy or custom adopted by officials responsible for making such policy- To meet his burden of showing that Cobb County had a policy or custom of failing to train its officers adequately in the use of force against arresters, plaintiff must establish a “series of incidents of unconstitutional conduct suggesting the existence of a widespread practice that ... constitutes a custom or usage with the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Although plaintiff ar gues that his treatment at the hands of Officer Worley was pursuant to an official policy or custom of Cobb County, he has failed to produce sufficient evidence that his treatment was part of any “series of incidents of unconstitutional conduct.” Defendants have presented evidence that Cobb County has an extensive training program regarding the use of force, and that Officer Worley had been trained in the appropriate procedures and policies. 0See SMF at ¶¶2-5, 8-10; Worley Aff.) Plaintiff argues that the facts surrounding" }, { "docid": "22161843", "title": "", "text": "the plaintiff can establish that the policymaking authority acquiesced in a pattern of unconstitutional conduct. 991 F.2d at 1326; see also Felton v. Board of Commissioners, 5 F.3d 198, 203 (7th Cir.1993). A municipal “custom” may be established by proof of the knowledge of policymaking officials and their acquiescence in the established practice. See Fletcher v. O’Donnell, 867 F.2d 791, 793-94 (3d Cir.), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 591 (1989). The longstanding or widespread nature of a particular practice would support the inference that policymaking officials “must have known about it but failed to stop it.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991); see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir.1989). Although this case is very close, we are convinced that the evidence was sufficient for a reasonable jury to conclude that the CTA Board acquiesced in a practice or custom of terminating white per diems. We outline that evidence below. First, John Hoellen, a member of the CTA’s Board from 1979 to 1990, testified about a procedure whereby an aggrieved employee could petition the Board for a hearing to challenge an adverse employment decision. Hoellen stated that the Board received forty-seven petitions for hearings from employees who had been removed by Hughes and that this represented a marked increase — a “crescendo,” as he called it — in such petitions over previous years. Indeed, Hoellen stated that the Board had held few hearings prior to 1984. Most of the petitions during Hughes’ tenure came from white employees, whom Hoellen classified as “very capable people,” who complained that they were victims of reverse discrimination. These employees complained to the Board that they had been harassed on the job in an effort to force them to quit, and some petitions even alleged that white employees had been placed in rooms and provided no duties. Hoellen sat as a hearing officer during part of the Hughes era, and he testified that many of the petitions were “settled,” meaning that the complaining employee was restored to his" }, { "docid": "2584968", "title": "", "text": "by written law or express municipal policy, is ‘so permanent and well settled as to constitute a ‘custom or usage’ with the force of law[.]” In other words, a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it. Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (citations omitted); see also City of Oklahoma City, 471 U.S. at 828-24, 105 S.Ct. at 2436, 85 L.Ed.2d at 804 (where a § 1983 claim turns on the failure of an officer to comply with an express, constitutional policy, proof of more than a single incident will be necessary to establish both the requisite municipal fault and the causal connection between the practice and the constitutional deprivation). The record in this case reveals that Young is not the only City inmate who has complained of a lack of adequate treatment for serious medical problems stemming from mental illness. Furthermore, the alleged mistreatment and omissions suffered by Young occurred over a period of several months. According to her deposition testimony, at least three different jailers were charged with her care during her incarceration. Construing this evidence in the light most favorable to Young, an inference may be made that a pattern of deliberate indifference to the psychiatric needs of mentally ill inmates existed at the jail of which City policymakers should have been aware. We agree with Young that Cullinan’s affidavit is insufficient to counter this inference. It emphasizes the City’s general, formal policy concerning inmate medical care and the training of jail personnel, which has no bearing on the alleged custom which Young complains was actually in place. The record does not confirm Cullman’s contention that the official policy regarding prompt and appropriate medical attention was followed in this case. Furthermore, it cannot be determined from Cullman’s broad statements with respect to the initial and continuing training of jail staff that the instruction provided-to the particular guards charged with Young’s care was sufficient. Evidence of the details of the training program is conspicuously absent from the" }, { "docid": "22263555", "title": "", "text": "is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997). A custom is an unwritten practice that is applied consistently enough to have the same effect as a policy with the force of law. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988). Demonstrating a policy or custom requires “showing] a persistent and wide-spread practice.” Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir.1986). Goebert’s official capacity claim against Sheriff Scott relies on the Lee County Jail’s policy of not permitting inmates to lie down during the daytime without a pass coupled with the staffs failure to issue such passes when medically necessary. The policy of not permitting inmates to lie down at their leisure during the daytime is a reasonable one. It certainly is not facially unconstitutional. Goe-bert’s claim, in effect, is that this facially constitutional policy was implemented in an unconstitutional manner-&emdash;one that ignored medical needs. Our decisions establish that supervisory liability for deliberate indifference based on the implementation of a facially constitutional policy requires the plaintiff to show that the defendant had actual or constructive notice of a flagrant, persistent pattern of violations. See West, 496 F.3d at 1329 (“ ‘The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.’ ” (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999))); Mathews v. Crosby, 480 F.3d 1265, 1271 (11th Cir.), petition for cert. filed, 76 U.S.L.W. 3050 (U.S. Jul. 23, 2007) (No. 07-86) (reviewing the facts in the light most favorable to the plaintiff to determine “whether [a prison warden] was put on notice by a history of widespread abuse at [the prison], or whether he had established customs or policies resulting in deliberate indifference to a prisoner’s constitutional rights”); Marsh, 268 F.3d at" }, { "docid": "7570910", "title": "", "text": "same-sex sexual harassment is a violation of Title VII. Plaintiff has also failed to create a genuine issue of material fact to support his Section 1983 claims against Defendant H.E. Holcomb and the Macon Water Authority. As the Supreme Court has explained, a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether 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. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Plaintiff has presented no evidence to refute Defendants’ evidence that Holcomb did not have final policy-making authority with regard to personnel matters, nor is there evidence to show that the Macon Water Authority itself had a policy or custom encouraging or permitting supervisors to sexually harass employees. In order to establish liability against a municipal entity under Section 1983, a plaintiff must show at the very least that his injury was the result of a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law. See, Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991). Plaintiff has not presented evidence to show that sexual harassment at the Macon Water Authority was widespread, permanent, or well settled. Accordingly, Defendants’ motion for summary judgment is GRANTED as against Plaintiffs Section 1983 claims. VIII. Plaintiffs First Amendment Claims. Plaintiff’s First Amendment claim alleges that he suffered retaliation for making complaints about sexual harassment and for filing the EEOC complaint. Because the Court has found, in part V. of this opinion, that there is no evidence of a “campaign of retaliation” in response to Plaintiffs complaints, the First Amendment claim is without merit. Defendants’ motion for summary judgment is GRANTED as to the claim. ORDER On February 14, 1997," }, { "docid": "18590358", "title": "", "text": "Section 1983 provides a fault-based analysis for imposing municipal liability; therefore, plaintiffs must establish that the city was the person who caused them to be subjected to their deprivation. To establish a policy or custom, it is generally necessary to show a persistent and wide-spread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the municipality. Normally random acts or isolated incidents are insufficient to establish a custom or policy. Bennett v. City of Slidell, 728 F.2d 762, on rehearing, 735 F.2d 861 (5th Cir.1984) {en banc). However, the custom need not receive formal approval. Monell, 436 U.S. at 691, 98 S.Ct. at 2036. In this case, while the city provided rules and regulations for the operation of its police department, these rules were violated on numerous occasions. The city, however, failed to rectify the situation. The evidence revealed several incidents involving the use of unreasonable and excessive force by police officers. Therefore, the city had knowledge of improper police conduct, but failed to take proper remedial action. The continued failure of the city to prevent known constitutional violations by its police force is precisely, the type of informal policy or custom that is actionable under section 1983. See Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981); See also Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Ill Appellant maintains that plaintiffs failed to state a claim under section 1983, because they had an adequate remedy under state law and were not denied due process. Plaintiffs can pursue claims for false imprisonment, false arrest, and assault and battery in state court. Since state law provides plaintiffs with these post-deprivation remedies, appellant asserts that plaintiffs have received all the process which they are due under the Fourteenth Amendment. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) is the starting point for discussion. Parratt involved a section 1983 suit for damages of $23.50 brought by an inmate for the negligent deprivation of property without due process" }, { "docid": "23147217", "title": "", "text": "is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality opinion) (quoting Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300). With respect to custom, the Court in Monell asserted that “although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments ... by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. Consistent with the commonly understood meaning of custom, proof of random acts or isolated events are insufficient to establish custom. Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir.1987); Depew v. City of St. Mary’s, 787 F.2d 1496, 1499 (11th Cir.1986). Only if a plaintiff shows that his injury resulted from a “permanent and well-settled” practice may liability attach for injury resulting from a local government custom. See Praprotnik, 108 S.Ct. at 926 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168, 90 S.Ct. 1598, 1614, 26 L.Ed.2d 142 (1970) (“a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well-settled as to constitute a custom or usage with the force of law’ ”). If such a showing is made, however, a local government may be liable for its custom irrespective of whether official policymakers had actual knowledge of the practice at issue. The existence of custom as a basis for liability under § 1983 thus serves a critical role in insuring that local government entities are held responsible for widespread abuses or practices that cannot be affirmatively attributed to the decisions or ratification of an official government policymaker but are so pervasive as to have the force of law. See id. A. With these principles in" }, { "docid": "1623287", "title": "", "text": "Amst A local government body, such as the School Board in this case, is liable under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury....” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff can establish § 1983 liability by identifying that she has been deprived of constitutional rights by either an express policy or a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom and usage with the force of law.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (internal quotes omitted) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Cuesta asserts that both the express policy and the custom of the County were responsible for her alleged constitutional deprivations. It is not sufficient for a government body’s policy to be tangentially related to a constitutional deprivation. The “official policy or custom must be the moving force of the constitutional violation in order to establish liability of a government body under § 1983.” Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir.1984) (internal quotes omitted). A plaintiff “must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Cuesta asserts that the “zero tolerance” policy of the School Board was the “moving force” behind her allegedly unconstitutional arrest. A fair reading of the School Board Rules (“the Rules”), however, reveals that they were not the “moving force” behind her arrest. The zero tolerance policy is made up of three provisions of the School Board Rules (“the Rules”) and is supplemented by the Code of Student Conduct. Under the Rules, School Police are responsible for “providing assistance” in “[t]he prevention and" }, { "docid": "22161842", "title": "", "text": "finding of an official command of the CTA Board to terminate white per diems and to replace them with African-Americans. Although the Board did not have an anti-discrimination policy in effect when McNabo-la was terminated, it also had not officially adopted a written policy or ordinance directing the termination of white per diems. Even witnesses who testified for McNabola stated that they knew of no official Board policy of terminating white per diem employees. In the absence of a formal policy, McNabola must rely on Monell’s custom or practice prong to establish a basis for municipal liability. Monell authorizes the imposition of liability against a municipal entity “for constitutional deprivations visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the body’s official decisionmaking channels.” 436 U.S. at 690-91, 98 S.Ct. at 2036; see also Pembaur, 475 U.S. at 482 n. 10, 106 S.Ct. at 1300 n. 10. We explained in Cornfield that “a practice of unconstitutional conduct, although lacking formal approval, may provide a basis for municipal liability” if the plaintiff can establish that the policymaking authority acquiesced in a pattern of unconstitutional conduct. 991 F.2d at 1326; see also Felton v. Board of Commissioners, 5 F.3d 198, 203 (7th Cir.1993). A municipal “custom” may be established by proof of the knowledge of policymaking officials and their acquiescence in the established practice. See Fletcher v. O’Donnell, 867 F.2d 791, 793-94 (3d Cir.), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 591 (1989). The longstanding or widespread nature of a particular practice would support the inference that policymaking officials “must have known about it but failed to stop it.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991); see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir.1989). Although this case is very close, we are convinced that the evidence was sufficient for a reasonable jury to conclude that the CTA Board acquiesced in a practice or custom of terminating white per diems. We outline that evidence below. First, John Hoellen, a member of the CTA’s" }, { "docid": "22838937", "title": "", "text": "assist the state to keep peace” and to protect state employees. According to DeJarvis Leonard, this peace-keeping function included “mak[ing] initial contact with those individuals” under the bridges “prior to ... someone from the highway department giving them trespassing warrants.” None of the homeless witnesses could testify with any specifici ty as any additional role of the City police in the bridge sweep operation. Even if we were to impute to the City full responsibility for the removal of the homeless and their property, we would still be unable to agree that such action is indicative of a City policy to violate the rights of the homeless. The Constitution does not confer the right to trespass on public lands. Nor is there any constitutional right to store one’s personal belongings on public lands. In this case, the property owner, the State of Alabama, authorized the removal of the homeless and their belongings from under the bridges and overpasses. It is irrelevant that the State made its decision at the request of the City and that City workers aided state employees in carrying out that decision. The plaintiffs allege a constitutional violation in the failure to return to the homeless any personal belongings that were removed but not destroyed, but the uncontroverted evidence at the hearing was that these items are, and have always been, in the possession of the State, not the City. ii. Pervasive Practice or Custom The plaintiffs also have failed to show a substantial likelihood of success under the “practice or custom” approach. In Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.1986), this Court held that to establish a practice or custom: it is generally necessary to show a persistent and widespread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the municipality. Normally random acts or isolated incidents are insufficient to establish a custom or policy. In Depew, a police brutality case, we upheld a jury verdict for the plaintiffs on the basis of approximately five prior incidents of excessive force. We held that" }, { "docid": "14880459", "title": "", "text": "established by the Supreme Court twelve years ago and its implications in the present matter are readily apparent. Accordingly, the individual Defendants cannot hide under the Eleventh Circuit’s broad qualified immunity rule in this respect. As such the Motions For Summary Judgment of all the individual Defendants save Davis are due to be denied. b. Municipal Liability The City may not be held liable for the individual Defendants’ actions on the theory of respondeat superior; rather, liability will lie only if said actions “result from an official government policy,” if the individual Defendants may be “fairly deemed to represent government policy,” or if the actions are emblematic of “a custom or practice so pervasive and well-settled that it assumes the force of law.” Oladeinde v. City of Birmingham, 230 F.3d 1275, 1295 (11th Cir.2000) (internal quotations omitted). “To establish a policy or custom, it is generally necessary to show a persistent and wide-spread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the municipality.” Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir.1999) (quoting Depew v. City of St. Mary’s, 787 F.2d 1496, 1499 (11th Cir.1986)). The same facts that implicate the numerous individual Defendants can be characterized as a widespread practice. In the weeks leading up to the election numerous MFD officials solicited campaign assistance from employees during work hours. Meetings were held during work hours pertaining to the campaign, and non-participants were excluded and ridiculed. During the campaign efforts, Mayor Folmar’s executive assistants actively sought said assistance. These very individuals then appeared at the off-work outings and kept a record of which employees assisted in the campaign efforts. George plainly stated that the administration was looking at loyalty in making its promotion decisions. The individual Defendants recommended to Mayor Folmar that an employee who willingly volunteered in the campaign be promoted. These facts are more than sufficient to raise a jury question as to a pervasive and wide-spread practice. Admittedly there is no direct evidence suggesting that the final decisionmaker, Mayor Folmar, was aware of said practice, but the present" }, { "docid": "1623286", "title": "", "text": "an unconstitutional strip search. The district court granted a motion to dismiss by Officer Alexander based on qualified immunity; that decision has not been appealed. The district court then granted summary judgment for both the County and the School Board. Cuesta appeals those grants of summary judgment. II. DISCUSSION Summary judgment is 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This court reviews the grant of summary judgment de novo, applying the same legal standards as the district court. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1339 (11th Cir.2000). We construe the facts and draw all reasonable inferences in the light most favorable to the non-moving party. Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir.1998). A. The Amst A local government body, such as the School Board in this case, is liable under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury....” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff can establish § 1983 liability by identifying that she has been deprived of constitutional rights by either an express policy or a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom and usage with the force of law.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (internal quotes omitted) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Cuesta asserts that both the express policy and the custom of the County were responsible for her alleged constitutional deprivations. It" }, { "docid": "22847126", "title": "", "text": "a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation. See Canton, 489 U.S. at 388, 109 S.Ct. 1197. No party challenges that McDowell had a severe medical condition that required urgent care and treatment, which he did not receive. This resulted in a violation of McDowell’s constitutional rights. Our first inquiry, then, is whether Dekalb’s policy or custom was to understaff the field division so as deny McDowell’s constitutional rights. In Wayne v. Jarvis, 197 F.3d 1098 (11th Cir.1999), we clarified the standard for establishing municipal liability. A plaintiff seeking to hold a municipality liable under § 1983 must “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiffs injury.” Id. at 1105 (quoting Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). We defined custom as “a practice that is so settled and permanent that it takes on the force of the law.” Wayne, 197 F.3d at 1105 (quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998)). In order for a plaintiff to demonstrate a policy or custom, it is “generally necessary to show a persistent and wide-spread practice.” Id. (internal quotations and citations omitted). See also, Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir.1994). This threshold identification of a custom or policy “ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted, legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Brown, 520 U.S. 403-04, 117 S.Ct. 1382 (citations omitted). This prevents the imposition of liability based upon an isolated incident. See Depew v. City of St. Marys, 787 F.2d 1496 (11th Cir.1986) (“Normally, random acts or isolated incidents are insufficient to establish a custom or policy”). Rather, the incident must result from a demonstrated practice. See Wayne, 197 F.3d at 1106 (determining that a single decision, “even if erroneous, would not support the inference" } ]

[ { "docid": "14331768", "title": "", "text": "that he did not have the mold in his possession. On September 4, 1953, over four months after the sale, Pateo filed a petition to reclaim the mold. Hearings were held on this petition. On February 4, 1954, Pateo filed a petition for leave to sue the trustee in a plenary action. Additional hearings were had. On July 2, 1954, the referee denied the reclamation petition because the trustee no longer had possession of the mold, and dismissed the petition for leave to sue on the ground that the bankruptcy court was “without authority to act thereon.” The District Judge affirmed the denial of the reclamation petition but remanded the petition for leave to sue the trustee for further action. After another hearing, the referee again dismissed the petition for leave to sue on the grounds that Pateo had been guilty of laches and that the receiver or trustee had not been negligent. The referee was of the view that Pateo had allowed an unreasonable time to elapse before seeking to recover the mold by a reclamation petition and that “the receiver-trustee was a bailee for the benefit of Pateo and would be liable only for an act of gross negligence.” The court below affirmed. The appeal followed. We agree that Pateo must make a prima facie case against the trustee, showing that its claim is not without foundation. Dunscombe v. Loftin, 5 Cir., 1946, 154 F.2d 963; Driver-Harris Co. v. Industrial Furnace Corp., D.C.W.D.N. Y., 1935, 12 F.Supp. 918. We think, however, that the court below erred when it held, implicitly, that Pateo had not made out such a case. We cannot agree with the court’s conclusion that the receiver or trustee was in the position of a gratuitous bailee and therefore liable only for gross negligence. “[A] bankruptcy trustee is undoubtedly charged with the duty of preserving property which comes into his custody, including that of claimants whose claims he may in the exercise of a reasonable judgment oppose * * Rife v. Ruble, 6 Cir., 1939, 107 F.2d 84, 86. “He is not a purchaser, but as" } ]

[ { "docid": "15429107", "title": "", "text": "evictions are illegal, Appellant argues that it abused its discretion. (Id. at 11-12.) Having conducted a de novo review of the law, the Court concludes that the Bankruptcy Court did not err in granting Trustee Swope’s motion to dismiss. The Court first finds that neither 28 U.S.C. § 959(a) nor the Barton doctrine apply to this matter. Pursuant to 28 U.S.C. § 959(a), trustees and managers of property may be sued “with respect to any of their acts or transactions in carrying on business connected with such property.” 28 U.S.C. § 959(a). The undisputed facts establish that Trustee Swope was not carrying on business connected with the Estate Property because, in exercising her duties as a trustee, she merely performed tasks that were incident to the consolidation, preservation, and liquidation of assets in the Estate Property. See, e.g., In re VistaCare Group, LLC, 678 F.3d 218, 227 (3d Cir.2012) (“[W]here a trustee acting in his official capacity conducts no business connected with the property other than to perform administrative tasks necessarily incident to the consolidation, preservation, and liquidation of assets in the debtor’s estate, § 959(a) does not apply.”) (internal quotations omitted); Access for the Disabled, Inc. v. HIPA Assocs., LLC, No. 2:10-CV-50, 2011 WL 1790051, at *3, 2011 U.S. Dist. LEXIS 49892, at *9 (W.D.Pa. May 10, 2011) (holding that 28 U.S.C. § 959(a) was inapplicable because it “contemplates actions redressing torts committed in furtherance of the debtor’s business”) (internal quotations omitted). Similarly, the Barton doctrine is inapplicable to this matter because Appellant was not seeking approval to proceed in another forum. See, e.g., Bender v. Hargrave, No. 15-CV-6936, 2015 WL 7574763, at *3, 2015 U.S. Dist. LEXIS 159198, at *9 (D.N.J. Nov. 25, 2015) (finding that the Barton doctrine was inapplicable because the plaintiffs had not sought leave to sue the bankruptcy trustee in another court). The Court next concludes that the Bankruptcy Court’s analysis of Trustee Swope’s motion to dismiss is entirely consistent with this Court’s own application of the law. Appellant has failed to identify any authority establishing that a trustee is not entitled to immunity." }, { "docid": "2910433", "title": "", "text": "is required (“Trustees ... may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property”), and “[a]n unbroken line of eases ... has imposed the requirement as a matter of federal common law.” Matter of Linton, 136 F.3d 544, 545 (7th Cir.1998). See In re VistaCare Grp., LLC, 678 F.3d 218, 227 (3d Cir.2012) (internal quotations omitted) (“In contrast, where a trustee acting in his official capacity conducts no business connected with the property other than to perform administrative tasks necessarily incident to the consolidation, preservation, and liquidation of assets in the debtor’s estate ... leave of court is still required before filing suit against the trustee.”). Bankruptcy courts in the Northern District of Illinois and other circuits have applied the leave of court requirement to proposed suits against a trustee’s counsel. In re Kids Creek Partners, L.P., 248 B.R. at 558 (“Prospective plaintiffs should obtain leave of the court in which the trustee was appointed before they may sue a bankruptcy trustee and his or her counsel in a non-appointing forum.”); In re Berry Pub. Servs., Inc., 231 B.R. 676, 679 (Bankr. N.D.Ill.1999) (“The Barton doctrine requires leave of the appointing court before suit can be brought against a bankruptcy trustee or his counsel.”). See also In re McKenzie, 716 F.3d 404, 411 (6th Cir.2013) (internal quotation marks omitted) (“it is important to note that GKH’s appeals ... have not challenged the bankruptcy court’s application of the same standards to the Trustee and his attorneys. As a matter of law, counsel for trustee .... are the functional equivalent of a trustee....”); McDaniel v. Blust, 668 F.3d 153, 157 (4th Cir.2012) (“for the Barton doctrine to apply to a suit against a bankruptcy trustee’s attorneys, we know of no reason why the trustee must have directed counsel to take the specific actions that are the subject of the suit.”). 2. Abuse of discretion A bankruptcy court’s denial of leave to sue a trustee or trustee’s counsel is reviewed for abuse of discretion. In re" }, { "docid": "5890026", "title": "", "text": "if federal common law would otherwise preclude it. See generally Carter v. Rodgers, 220 F.3d 1249, 1254 (11th Cir.2000), cert. denied, 531 U.S. 1077, 121 S.Ct. 775, 148 L.Ed.2d 673 (2001); In re DeLorean Motor Co., 991 F.2d 1236, 1240-41 (6th Cir.1993). As will be discussed, the nineteenth century federal common law limitation on suits against receivers remains partially viable today, although it is most often relied upon by bankruptcy trustees. See, e.g., Lurie v. Blackwell, 211 F.3d 1274 (Table), 2000 WL 237966 (9th Cir.2000); Matter of Linton, 136 F.3d 544 (7th Cir. 1998); In re Lehal Realty Associates, 101 F.3d 272 (2d Cir.1996); In re DeLorean Motor Co., 991 F.2d at 1240; Rickman v. Batt, 265 B.R. 416 (E.D.Pa.2001). Thus, I must consider whether the instant proceeding is barred by federal common law. III. A. The plaintiff-trustee, while not disputing that some common law restriction against suing equity receivers still exists, argues in response to the defendant’s motion to dismiss that the federal common law requirement of obtaining leave from the appointing court prior to suing a state court receiver is either inapplicable in these circumstances or has been superceded by federal statutory law. As noted earlier, 28 U.S.C. § 959(a) partially supercedes the restriction upon receivership lawsuits. In addition, 11 U.S.C. § 543(b) requires a state court receiver to turn over property to a bankruptcy trustee which would be property of the estate. See generally In re Si Yeon Park, Ltd., 198 B.R. 956 (Bankr.C.D.Cal.1996). Such a turnover requirement may undermine the Barton Doctrine to some degree. Neither statutory provision, however, is germane to this proceeding. As mentioned above, the former statute is inapplicable because it is limited to receivers that operate businesses. The trustee concedes that Mr. Freeman was appointed solely as a liquidating receiver. The latter statute is inapplicable because its directives are addressed to “custodians” — a term defined by section 101(11) to include receivers — whose duties involve controlling property of the debtor for the benefit of the debtor’s creditors. See Matter of Miami General Hosp., Inc., 1111 B.R. 363, 366 (S.D.Fla.1990) (holding that" }, { "docid": "11309273", "title": "", "text": "court without leave of his appointing court.”); In re Weisser Eyecare, Inc., 245 B.R. 844, 851 (Bankr.N.D.Ill.2000) (“Courts which have held trustees personally hable for actions taken outside the scope of their authority, have mainly done so in matters involving a trustee’s mistaken seizure of property not property of the estate, or other similar actions.”). Our recent order and judgment in Teton Millwork Sales v. Schlossberg, 311 Fed. Appx. 145 (10th Cir.2009) (unpublished), charted a similar course. In that case, Teton Millwork Sales, a corporation in which the husband in an underlying divorce proceeding was a twenty-five percent shareholder, claimed that a court-appointed receiver wrongfully seized its assets. We concluded that such claims fell “squarely within th[e] ultra vires exception to the Barton doctrine.” Id. at 148. However, the dissent argued that the seizure occurred within the scope of authority granted to the receiver because the appointing court “adjudged and ordered” the receiver to “seize any assets that [the husband] has an ownership interest therein.” Id. at 153 (Ebel, J., dissenting). The majority distinguished the cases cited by the dissent on the ground that “none of them involved an outside party who claimed that their assets had wrongfully been seized.” Id. at 148. Other courts have adopted a relatively broad interpretation of the Barton doctrine when considering claims by plaintiffs who are involved in the underlying bankruptcy proceeding. In Triple S Restaurants, the plaintiff was general counsel for the bankrupt entity and claimed that the trustee threatened to refer criminal charges unless he signed a settlement agreement transferring certain funds to the estate. 519 F.3d at 578. The Sixth Circuit concluded that the ultra vires exception did not apply because “the negotiations were within the context of recovering assets for the estate.” Id. Similarly, in Lawrence v. Goldberg, 573 F.3d 1265 (11th Cir.2009), the court held that a suit by the debtor was barred because the “essence of [plaintiffs] complaint is that the Trustee and other defendants colluded to enforce ... an order of the bankruptcy court, and otherwise unlawfully attempted to bring assets into the bankruptcy estate” and thus" }, { "docid": "5890025", "title": "", "text": "e.g., Texas & Pacific Railway Go. v. Cox, 145 U.S. 593, 601-02, 12 S.Ct. 905, 36 L.Ed. 829 (1892); McNulta v. Lochridge, 141 U.S. 327, 330, 12 S.Ct. 11, 35 L.Ed. 796 (1891); In re Commercial Financial Services, Inc., 252 B.R. 516, 526-27 (Bankr.N.D.Okla.2000). That statute, since modified, was the ancestor of current 28 U.S.C. § 959. The present statute states in relevant part: (a) Trustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice, but this shall not deprive a litigant of his right to trial by jury. There is no dispute in this proceeding that Mr. Freeman was never empowered to operate the business of PRSI. Therefore, the provisions of section 959(a) are inapplicable to justify this adversary proceeding if federal common law would otherwise preclude it. See generally Carter v. Rodgers, 220 F.3d 1249, 1254 (11th Cir.2000), cert. denied, 531 U.S. 1077, 121 S.Ct. 775, 148 L.Ed.2d 673 (2001); In re DeLorean Motor Co., 991 F.2d 1236, 1240-41 (6th Cir.1993). As will be discussed, the nineteenth century federal common law limitation on suits against receivers remains partially viable today, although it is most often relied upon by bankruptcy trustees. See, e.g., Lurie v. Blackwell, 211 F.3d 1274 (Table), 2000 WL 237966 (9th Cir.2000); Matter of Linton, 136 F.3d 544 (7th Cir. 1998); In re Lehal Realty Associates, 101 F.3d 272 (2d Cir.1996); In re DeLorean Motor Co., 991 F.2d at 1240; Rickman v. Batt, 265 B.R. 416 (E.D.Pa.2001). Thus, I must consider whether the instant proceeding is barred by federal common law. III. A. The plaintiff-trustee, while not disputing that some common law restriction against suing equity receivers still exists, argues in response to the defendant’s motion to dismiss that the federal common law requirement of obtaining leave from the appointing court prior" }, { "docid": "10306455", "title": "", "text": "but she did not seek leave of the court that appointed the receiver to bring her suit. Id. at 127. The Supreme Court stated that “[i]t is a general rule that before suit is brought against a receiver leave of the court by which he was appointed must be obtained.” Id. Accordingly, the Supreme Court held that “a court of another State has not jurisdiction, without leave of the court by which the receiver was appointed, to entertain a suit against [the receiver].” Id. at 137. Modern courts have extended the Barton doctrine to bankruptcy trustees. See, e.g., Satterfield, 700 F.3d at 1234-35 (“We now hold that Barton precludes suit against a bankruptcy trustee for claims based on alleged misconduct in the discharge of a trustee’s official duties absent approval from the appointing bankruptcy court.”); VistaCare, 678 F.3d at 232 (“[W]e hold that the Barton doctrine remains valid, and therefore ... a party must first obtain leave of the bankruptcy court before it brings an action in another forum against a bankruptcy trustee for acts done in the trustee’s official capacity.”); McDaniel v. Blust, 668 F.3d 153, 157 (4th Cir.2012) (“This principal has been extended to suits against bankruptcy trus-tees_”); Indus. Clearinghouse, Inc. v. Mims (In re Coastal Plains, Inc.), 326 B.R. 102, 111 (Bankr.N.D.Tex.2005) (“The Barton Doctrine ... was expanded to include claims against bankruptcy trustees.”). At first blush, then, it appears that this Court would not have jurisdiction to hear the Counterclaim because it is against Trustees Cunningham, Mims, and Reed, and RPD has not sought leave to bring the Counterclaim. However, RPD argues that because the Counterclaim was asserted in the court that appointed Trustees Cunningham, Mims, and Reed, “it would be absurd to conclude that this Court lacks jurisdiction over those claims-” Objection of RPD Holdings, LLC to Trustee’s Motion to Dismiss [Dkt. No. 64] at 2. Thus, the issue before this Court is whether the Barton doctrine applies to suits brought against a trustee in the appointing court. This Court agrees with those courts that have concluded that a party-does not need leave to sue" }, { "docid": "10306459", "title": "", "text": "trustee in the same bankruptcy court that appointed her trustee, it reinforces rather than undermines [the policies of the Barton doctrine]; the bankruptcy court maintains control over all matters relating to the bankruptcy proceeding, can effectively screen complaints against the trustee, and can monitor the trustee’s work. Id. Finally, from this Court’s perspective, leave should not be required when suit is brought against the trustee in the appointing court because the appointing court can screen complaints against the trustee through another procedural mechanism— i.e., Federal Rule of Civil Procedure 12(b)(6), which provides a more stringent standard in evaluating whether a legitimate claim for relief has been stated than is applied when leave is sought. Specifically, when a party seeks leave to sue a trustee, that party “must make a prima facie case against the trustee, showing that its claim is not without foundation.” VistaCare, 678 F.3d at 232 (internal quotation marks omitted). And, while the standard for granting leave “is similar to the standard courts employ when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),” the standard for granting leave to sue is more flexible than the standard for granting a motion to dismiss, especially in light of the pleading standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). VistaCare, 678 F.3d at 232. In short, it is inefficient and a waste of judicial resources to require a party who wishes to sue a trustee to seek leave of the appointing court before bringing those claims in the appointing court. Once the suit is filed in the appointing court, the trustee can protect himself from frivolous suits by simply filing a motion to dismiss if he challenges the sufficiency of the claims filed against him. In fact, the trustee is better protected from frivolous suits through the more stringent Rule 12(b)(6) standard. Because this Court interprets the Barton doctrine to only apply to cases filed in a non-appointing court, the Motion to Dismiss must be, and hereby is, denied. SO ORDERED. . The district court ultimately affirmed the bankruptcy" }, { "docid": "10306460", "title": "", "text": "of Civil Procedure 12(b)(6),” the standard for granting leave to sue is more flexible than the standard for granting a motion to dismiss, especially in light of the pleading standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). VistaCare, 678 F.3d at 232. In short, it is inefficient and a waste of judicial resources to require a party who wishes to sue a trustee to seek leave of the appointing court before bringing those claims in the appointing court. Once the suit is filed in the appointing court, the trustee can protect himself from frivolous suits by simply filing a motion to dismiss if he challenges the sufficiency of the claims filed against him. In fact, the trustee is better protected from frivolous suits through the more stringent Rule 12(b)(6) standard. Because this Court interprets the Barton doctrine to only apply to cases filed in a non-appointing court, the Motion to Dismiss must be, and hereby is, denied. SO ORDERED. . The district court ultimately affirmed the bankruptcy court’s decision to dismiss on the grounds that the suit was untimely. In re marchFIRST, 2008 WL 4287634, at *3, *5." }, { "docid": "10306454", "title": "", "text": "On July 9, 2014, Trustees Cunningham, Mims, and Reed filed an expedited motion to dismiss the Counterclaim [Dkt. No. 62] (the “Motion to Dismiss”). Trustees Cunningham, Mims, and Reed state in the Motion to Dismiss that the Counterclaim should be dismissed under Bankruptcy Rule 7012(b)(1) for lack of subject matter jurisdiction because RPD lacks standing under the Barton doctrine to assert it. For the reasons stated on the record at the hearing on the Motion to Dismiss, as supplemented by this Memorandum Opinion and Order, the Motion to Dismiss will be denied. This Court begins its analysis with the Barton doctrine. The Barton doctrine requires a party to obtain leave from the appointing court before bringing suit against a court-appointed receiver. In re VistaCare Group, LLC, 678 F.3d 218, 224 (3d Cir.2012). It is a jurisdictional rule. Satterfield v. Malloy, 700 F.3d 1231, 1234 (10th Cir.2012). The doctrine originated in Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672 (1881). In that case, the plaintiff sought personal injury damages against the receiver of a railroad, but she did not seek leave of the court that appointed the receiver to bring her suit. Id. at 127. The Supreme Court stated that “[i]t is a general rule that before suit is brought against a receiver leave of the court by which he was appointed must be obtained.” Id. Accordingly, the Supreme Court held that “a court of another State has not jurisdiction, without leave of the court by which the receiver was appointed, to entertain a suit against [the receiver].” Id. at 137. Modern courts have extended the Barton doctrine to bankruptcy trustees. See, e.g., Satterfield, 700 F.3d at 1234-35 (“We now hold that Barton precludes suit against a bankruptcy trustee for claims based on alleged misconduct in the discharge of a trustee’s official duties absent approval from the appointing bankruptcy court.”); VistaCare, 678 F.3d at 232 (“[W]e hold that the Barton doctrine remains valid, and therefore ... a party must first obtain leave of the bankruptcy court before it brings an action in another forum against a bankruptcy trustee for acts" }, { "docid": "10306458", "title": "", "text": "property in its possession for administration as trust assets, and has appointed a receiver ..., a court of another State has not jurisdiction, without leave of the court by which the receiver was appointed.”). So, from this Court’s perspective, when suit is brought in the appointing court, as here, the Barton doctrine is not implicated. Moreover, this Court is persuaded by the policy argument advanced in CIT Communications Finance Corps. v. Maxwell (In re marchFIRST, Inc.), No. 08-CV-121, 2008 WL 4287634 (N.D.Ill. Sept. 12, 2008). In marchFIRST, CIT leased phone equipment to the debtor. Id. at *1. CIT filed an adversary proceeding against the Chapter 7 trustee, alleging that the trustee breached his fiduciary duty by, inter alia, ignoring CIT's request for the return of the phone equipment. Id. at *2. The trustee moved to dismiss, arguing that CIT had not sought leave before filing its suit against him. Id. While the bankruptcy court agreed with the trustee that the Barton doctrine barred the suit, the district court disagreed, stating: When a party sues the trustee in the same bankruptcy court that appointed her trustee, it reinforces rather than undermines [the policies of the Barton doctrine]; the bankruptcy court maintains control over all matters relating to the bankruptcy proceeding, can effectively screen complaints against the trustee, and can monitor the trustee’s work. Id. Finally, from this Court’s perspective, leave should not be required when suit is brought against the trustee in the appointing court because the appointing court can screen complaints against the trustee through another procedural mechanism— i.e., Federal Rule of Civil Procedure 12(b)(6), which provides a more stringent standard in evaluating whether a legitimate claim for relief has been stated than is applied when leave is sought. Specifically, when a party seeks leave to sue a trustee, that party “must make a prima facie case against the trustee, showing that its claim is not without foundation.” VistaCare, 678 F.3d at 232 (internal quotation marks omitted). And, while the standard for granting leave “is similar to the standard courts employ when evaluating a motion to dismiss under Federal Rule" }, { "docid": "15594234", "title": "", "text": "court’s control by virtue of the Bankruptcy Code.’ ” In re VistaCare Grp., LLC, 678 F.3d 218, 229 (3d Cir. 2012) (brackets omitted) (quoting In re Linton, 136 F.3d 544, 545 (7th Cir. 1998)). So to the extent equity receivers and nineteenth century assignees performed duties that required the exercise of discretionary judgment to assist courts in adjudicating bankruptcy-related disputes, they would have enjoyed quasi-judicial immunity from suit' under the common law. The courts of appeals have uniformly held that the procedural and substantive immunities of equity receivers at common law carried over to the bankruptcy trustees of today. Thus, there is considerable acknowledgment that the common law procedural immunity known as the “Barton doctrine,” see Barton v. Barbour, 104 U.S. 126, 128-29, 26 L.Ed. 672 (1881), whereby an equity receiver could not be sued without leave of the court that appointed him, applies to the present-day bankruptcy trustee. See In re VistaCare Grp., 678 F.3d at 232; Carroll v. Abide, 788 F.3d 502, 505 n.12 (5th Cir. 2015) (collecting cases from ten circuits). Among the rationales courts have articulated in favor of the Barton doctrine is the “strong interest” “the court that appointed the trustee has ... in protecting him from unjustified personal liability for acts taken within the scope of his official duties.” In re Lehal Realty Assocs., 101 F.3d 272, 276 (2d Cir. 1996); see also Vass v. Conron Bros. Co., 59 F.2d 969, 970 (2d Cir. 1932) (L. Hand, J.) (“A trustee is equally an officer of the court; and [like a receiver] his possession is protected because it is the court’s .... ” (citation omitted)). There is also a broad consensus that bankruptcy trustees are substantively im.mune from suit under the doctrine of quasi-judicial immunity. Generally speaking, there are “two types of actions against trustees: breach of fiduciary duty claims brought by parties interested in the administration of the estate, and claims in tort or contract brought by third parties.” In re Mailman Steam Carpet Cleaning Corp., 196 F.3d 1, 7 n.4 (1st Cir. 1999). It is settled that a bankruptcy trustee may be held" }, { "docid": "2910434", "title": "", "text": "sue a bankruptcy trustee and his or her counsel in a non-appointing forum.”); In re Berry Pub. Servs., Inc., 231 B.R. 676, 679 (Bankr. N.D.Ill.1999) (“The Barton doctrine requires leave of the appointing court before suit can be brought against a bankruptcy trustee or his counsel.”). See also In re McKenzie, 716 F.3d 404, 411 (6th Cir.2013) (internal quotation marks omitted) (“it is important to note that GKH’s appeals ... have not challenged the bankruptcy court’s application of the same standards to the Trustee and his attorneys. As a matter of law, counsel for trustee .... are the functional equivalent of a trustee....”); McDaniel v. Blust, 668 F.3d 153, 157 (4th Cir.2012) (“for the Barton doctrine to apply to a suit against a bankruptcy trustee’s attorneys, we know of no reason why the trustee must have directed counsel to take the specific actions that are the subject of the suit.”). 2. Abuse of discretion A bankruptcy court’s denial of leave to sue a trustee or trustee’s counsel is reviewed for abuse of discretion. In re USA Baby, Inc., 520 Fed.Appx. 446, 448 (7th Cir.2013) (concluding that the district court did not abuse its discretion in denying appellant’s motion for leave to sue bankruptcy trustee for actions taken as a trustee); In re Linton, 136 F.3d at 546 (“The remaining question is whether the bankruptcy judge abused his discretion ... which is the standard governing our review of such a ruling ... in refusing to allow the plaintiffs to sue in state court.”). A bankruptcy court abuses its discretion when “its decision is premised on an incorrect legal principle or a clearly erroneous factual finding, or when the record contains no evidence on which the court rationally could have relied.” Wiese v. Cmty. Bank of Cent. Wis., 552 F.3d 584, 588 (7th Cir.2009). “Reviewing courts should accord significant deference to the determinations of the bankruptcy court, which, given its familiarity with the underlying facts and the parties, is uniquely situated to determine whether a claim against the trustee has merit.” In re VistaCare Grp., 678 F.3d at 233. 3. Prima facie" }, { "docid": "106739", "title": "", "text": "level. Herzog v. Leighton Holdings, Ltd. (In re Kids Creek Partners, L.P.), 233 B.R. 409 (N.D.Ill. 1999); In re Kids Creek Partners, L.P., 200 F.3d 1070 (7th Cir.2000). Plaintiffs now seek leave to proceed in their pending District Court Case No. 99 C 6438 against Trustee and Special Counsel to recover from them personally (not from the estate) for asserted willful and deliberate breaches of fiduciary duties, and malicious prosecution. Jurisdiction over this matter lies under 28 U.S.C. § 1334, and the matter is referred here by Local District Court General Rule 2.33(A). This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(F), and venue lies under 28 U.S.C. § 1409. Applicable Standards Under the Barton Doctrine , as applied by recent Seventh Circuit authority to bankruptcy matters, a party must seek leave of the bankruptcy court to file suit against a bankruptcy trustee seeking personal recovery from that person. In re Linton, 136 F.3d 544, 545 (7th Cir.1998). Before leave to sue a trustee can be obtained, the claimant must be able to plead a prima facie case against the trustee. In re Berry Publishing Services, Inc., 231 B.R. 676 (Bankr.N.D.Ill.1999) citing In re Kashani, 190 B.R. 875 (9th Cir. BAP 1995). As an officer of the court, a trustee’s exposure to personal liability is limited. A trustee “cannot be held personally liable unless he acted outside the scope of his authority as trustee, i.e. ultra vires, or breached a fiduciary duty that he owed as the trustee to some claimant fee.” See In re Schechter, 195 B.R. 380, 384 (N.D.Ill.1996); and In re Weisser Eyecare, Inc., 245 B.R. 844 (Bankr.N.D.Ill.2000), and cases cited. In this Circuit, a trustee’s personal liability for a breach of fiduciary duty extends only to “a willful and deliberate violation of his fiduciary duties.” In re Chicago Pacific Corp., 773 F.2d 909, 915 (7th Cir.1985) citing Mosser v. Darrow, 341 U.S. 267, 272, 71 S.Ct. 680, 95 L.Ed. 927 (1951). Discussion After filing their District Court suit, Plaintiffs have brought the present motion for leave to proceed with that suit against Trustee and" }, { "docid": "21021080", "title": "", "text": "holding assets, as well as other aspects of administering and liquidating the estate, do not constitute ‘carrying on business’ as that term has been judicially interpreted.”) (citations omitted). Carter’s action against the Defendants was for breach of fiduciary duty and involves the Defendants’ duties as they relate to the administration and liquidation of his estate. Because the alleged breaches attributed to Defendants are not premised on an act or transaction of a fiduciary in carrying out Carter’s business operations, section 959(a) is not applicable. Therefore, Carter must obtain leave of the bankruptcy court in order to sue Defendants in a forum other than the appointing court. See Kashani, 190 B.R. at 884 (“[B]reach of a fiduciary duty in the administration of the estate does not fall within the exception provided by 28 U.S.C. § 959(a).”); Mangun v. Bartlett (In re Balboa Improvements Ltd.), 99 B.R. 966, 970 (9th Cir. BAP 1989) (“[Section [959] was not intended to apply to a breach of fiduciary duty in the administration of a bankruptcy estate.”). III. CONCLUSION Plaintiff Carter failed to obtain leave from the bankruptcy court when such leave was a pre-requisite to filing this civil action against the Defendants outside of that court. Therefore, the district court lacked subject matter jurisdiction and properly dismissed this civil action against these Defendants. AFFIRMED. . Trustee Rodgers' wife, Mary Rodgers, purchased an oak dresser for $300, which was the last and highest bid for the dresser at the auction. Mrs. Rodgers offered to void the dresser's sale and return the item to the new trustee. This offer was denied by the new trustee who determined that \"voiding of the sale would not add value to the estate.” . Clements Antiques and the successor Chapter 7 trustee entered into a settlement whereby Clements Antiques agreed to return all commissions and fees it had received in connection with the auction, which totaled approximately $8,600. . We review a dismissal for lack of subject matter jurisdiction de novo. See, e.g., Pillow v. Bechtel Constr., Inc., 201 F.3d 1348, 1351 (11th Cir.2000). . In this case, Defendants other than" }, { "docid": "20230886", "title": "", "text": "Although this court has not yet endorsed any particular considerations to be taken into account, the bankruptcy court looked to the analysis articulated in Kashani for guidance. In re McKenzie, 2011 WL 3439081, at *9-12. Other courts also have relied on Kashani in varying degrees. Compare Beck v. Fort James Corp. (In re Crown Vantage), 421 F.3d 963, 976-77 (9th Cir.2005); In re VistaCare Group, LLC, 678 F.3d 218, 232-33 (3d Cir.2012); Cutright, 2012 WL 1945703, at *10-11; Strand v. Loveridge, No. 2:07-cv-576, 2008 WL 893004, at *3-4 (D.Utah Mar. 28, 2008); In re Eerie World Ent., LLC, 2006 WL 1288578 (Bankr.S.D.N.Y. Apr. 28, 2006). a. Prima Facie Case GKH devotes a substantial portion of its opening brief to the argument that it al leged sufficient facts to establish a prima facie case of malicious prosecution and abuse of process, but acknowledges that no findings were made by the bankruptcy court in that regard. The court in Kasha-ni explained that, even when a prima facie case has been alleged against the trustee, the bankruptcy court may nonetheless conclude that the suit would be more properly maintained in bankruptcy court. In re Kashani, 190 B.R. at 886. Here, the bankruptcy court acknowledged GKH’s arguments, assumed that a prima facie showing could be made, and relied on the extensive record submitted in support of the motion for leave in analyzing the other Kashani factors. In re McKenzie, 2011 WL 3439081, at *14. Since the decision rested on other considerations, we also assume without deciding that GKH’s subsequently filed complaint alleged a prima facie case of malicious prosecution or abuse of process in connection with the Bradley County Complaint. b. Kashani Factors Five questions were identified in Kashani as being relevant to whether the bankruptcy court should retain jurisdiction: 1. Whether the acts or transactions relate to the carrying on of the business connected with the property of the bankruptcy estate. If the proceeding is under 28 U.S.C. § 959(a), then no court approval is necessary.... 2. If approval from the appointing court appears necessary, do the claims pertain to actions of the" }, { "docid": "106738", "title": "", "text": "an adversary complaint on behalf of the estate suing Leighton for equitable subordination and lender liability. On August 21, 1995, appointment of Special Counsel was approved herein for litigation of the adversary proceeding against Leighton. Leighton obtained judgment in its favor on October 1, 1997. Herzog v. Leighton Holdings {In re Kids Creek Partners, L.P.), 212 B.R. 898 (Bankr.N.D.Ill.1997). Soon, thereafter, on October 14, 1997, Trustee filed a notice of appeal from this court’s decision in the adversary proceeding. A portion of the appeal was dismissed by District Court order on March 17, 1999 and Leighton obtained affirmance in its favor on remaining appeal issues, September 9, 1999. Herzog v. Leighton Holdings, Ltd., 239 B.R. 497 (N.D.Ill.1999). On September 10, 1997, Leighton filed its superpriority administrative claim. Despite the agreed order, Trustee opposed Leighton’s claim. On May 18, 1998, this Court entered a judgment order allowing Leighton’s superpriority claim and providing for its immediate payment. Trustee appealed first to the District Court and then to the Seventh Federal Circuit Court of Appeals, losing at each level. Herzog v. Leighton Holdings, Ltd. (In re Kids Creek Partners, L.P.), 233 B.R. 409 (N.D.Ill. 1999); In re Kids Creek Partners, L.P., 200 F.3d 1070 (7th Cir.2000). Plaintiffs now seek leave to proceed in their pending District Court Case No. 99 C 6438 against Trustee and Special Counsel to recover from them personally (not from the estate) for asserted willful and deliberate breaches of fiduciary duties, and malicious prosecution. Jurisdiction over this matter lies under 28 U.S.C. § 1334, and the matter is referred here by Local District Court General Rule 2.33(A). This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(F), and venue lies under 28 U.S.C. § 1409. Applicable Standards Under the Barton Doctrine , as applied by recent Seventh Circuit authority to bankruptcy matters, a party must seek leave of the bankruptcy court to file suit against a bankruptcy trustee seeking personal recovery from that person. In re Linton, 136 F.3d 544, 545 (7th Cir.1998). Before leave to sue a trustee can be obtained, the claimant must be able to" }, { "docid": "2910432", "title": "", "text": "appellees ask the Court to affirm the bankruptcy court’s order on the additional ground that trustee’s counsel is immune from all allegations of wrongdoing “because all complained-of actions were blessed by orders of the Bankruptcy Court,” and appellants failed to allege that counsel “acted ultra vires or breached a fiduciary duty to Appellants.” Id. at 14, 19. The Court also notes that on July 11, 2014, after' the conclusion of briefing in this appeal, the IDHFS issued a'final decision in the matter of the ownership of the SLF certificate for Morris Senior Living. See 111. Dep’t of Healthcare and Family Servs., 12 MVH 358 (Jul. 11, 2014). The agency found that Morris Healthcare lacked standing to contest the IDHFS’s attempt to terminate the facility’s certification and provider agreement because it failed to show that it owned the SLF certificate. Discussion A. Legal standards 1.Leave to sue trustee’s counsel Although the Bankruptcy Code does not expressly require leave of court to sue a bankruptcy trustee for his conduct as trustee, 28 U.S.C. § 959(a) assumes this is required (“Trustees ... may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property”), and “[a]n unbroken line of eases ... has imposed the requirement as a matter of federal common law.” Matter of Linton, 136 F.3d 544, 545 (7th Cir.1998). See In re VistaCare Grp., LLC, 678 F.3d 218, 227 (3d Cir.2012) (internal quotations omitted) (“In contrast, where a trustee acting in his official capacity conducts no business connected with the property other than to perform administrative tasks necessarily incident to the consolidation, preservation, and liquidation of assets in the debtor’s estate ... leave of court is still required before filing suit against the trustee.”). Bankruptcy courts in the Northern District of Illinois and other circuits have applied the leave of court requirement to proposed suits against a trustee’s counsel. In re Kids Creek Partners, L.P., 248 B.R. at 558 (“Prospective plaintiffs should obtain leave of the court in which the trustee was appointed before they may" }, { "docid": "15705683", "title": "", "text": "Martins’ objections to the Compromise Settlement Agreement were overruled by this Court’s 2-26-97 order and settlement was subsequently approved by the Court on March 13,1998. B. Petition for Leave to Sue Trustee and His Attorney in State Court Following the hearing on Debt- or’s petition, Debtor filed a brief with the Court acknowledging that she must obtain leave of the bankruptcy court that appointed the Trustee in order to sue the Trustee and his attorney in another forum for acts done in the Trustee’s authority as an officer of the court. This rule is commonly referred to as the “Barton Doctrine” because its rationale was first set out in the case of Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672 (1881). The Barton Doctrine has uniformly been applied in the courts that have considered the issue. See e.g., Carter v. Rodgers, 220 F.3d 1249 (11th Cir.2000); Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236 (6th Cir.1993); Ross v. Strauss, 231 B.R. 74 (Bankr.W.D.Mo.1999); In re Krikava, 217 B.R. 275 (Bankr.D.Neb.1998). The Barton Doctrine also applies to counsel representing a bankruptcy trustee. See Allard v. Weitzman, 991 F.2d at 1241 (“We hold, as a matter of law, counsel for trustee, court appointed officers who represent the estate, are the functional equivalent of a trustee, where as here, they act at the direction of the trustee and for the purpose of administering the estate or protecting its assets.”). See also In re Krikava, 217 B.R. at 278-279. In deciding whether to allow a suit to proceed against a bankruptcy trustee or his counsel, the appointing court may use its discretion but must first consider whether the plaintiff has set forth a prima facie case. See In re Krikava, 217 B.R. at 279. Once a plaintiff has set forth a prima facie case, the court should balance the interests of all parties involved, in deciding whether the suit should proceed in bankruptcy court or another forum. Id. Debtor maintains that she seeks retroactive leave of this Court to sue the Trustee and Dowden for certain official acts, including negligence" }, { "docid": "20230885", "title": "", "text": "Inc., 885 F.2d 1149, 1154 n. 6 (3d Cir.1989)). Moreover, the bankruptcy estate includes not only “all legal or equitable interests of the debt- or,” 11 U.S.C. § 541(a)(1), but also causes of action arising after commencement of the bankruptcy case. Id. at *10 (citing cases). Consistent with this authority, the Trustee’s actions in filing and pursuing the Bradley County Complaint were taken in pursuit of possible assets of the estate and fell within the broad scope of the Trustee’s duties and obligations under 11 U.S.C. § 704. Id. at *8; see also id. at *11. GKH has not demonstrated that the Trustee acted outside the scope of his authority so as to obviate the need to seek permission to file its third complaint in state court. 2. Exercise of Discretion We review the bankruptcy court’s decision whether to grant leave to sue the trustee in state court for abuse of discretion. Matter of Linton, 136 F.3d at 546; see also Kashani v. Fulton (In re Kashani), 190 B.R. 875, 886 (9th Cir. BAP 1995). Although this court has not yet endorsed any particular considerations to be taken into account, the bankruptcy court looked to the analysis articulated in Kashani for guidance. In re McKenzie, 2011 WL 3439081, at *9-12. Other courts also have relied on Kashani in varying degrees. Compare Beck v. Fort James Corp. (In re Crown Vantage), 421 F.3d 963, 976-77 (9th Cir.2005); In re VistaCare Group, LLC, 678 F.3d 218, 232-33 (3d Cir.2012); Cutright, 2012 WL 1945703, at *10-11; Strand v. Loveridge, No. 2:07-cv-576, 2008 WL 893004, at *3-4 (D.Utah Mar. 28, 2008); In re Eerie World Ent., LLC, 2006 WL 1288578 (Bankr.S.D.N.Y. Apr. 28, 2006). a. Prima Facie Case GKH devotes a substantial portion of its opening brief to the argument that it al leged sufficient facts to establish a prima facie case of malicious prosecution and abuse of process, but acknowledges that no findings were made by the bankruptcy court in that regard. The court in Kasha-ni explained that, even when a prima facie case has been alleged against the trustee, the bankruptcy court" }, { "docid": "2910435", "title": "", "text": "USA Baby, Inc., 520 Fed.Appx. 446, 448 (7th Cir.2013) (concluding that the district court did not abuse its discretion in denying appellant’s motion for leave to sue bankruptcy trustee for actions taken as a trustee); In re Linton, 136 F.3d at 546 (“The remaining question is whether the bankruptcy judge abused his discretion ... which is the standard governing our review of such a ruling ... in refusing to allow the plaintiffs to sue in state court.”). A bankruptcy court abuses its discretion when “its decision is premised on an incorrect legal principle or a clearly erroneous factual finding, or when the record contains no evidence on which the court rationally could have relied.” Wiese v. Cmty. Bank of Cent. Wis., 552 F.3d 584, 588 (7th Cir.2009). “Reviewing courts should accord significant deference to the determinations of the bankruptcy court, which, given its familiarity with the underlying facts and the parties, is uniquely situated to determine whether a claim against the trustee has merit.” In re VistaCare Grp., 678 F.3d at 233. 3. Prima facie showing A party seeking leave of court to sue a trustee (or trustee’s counsel) “must make a prima facie case against the trustee, showing that [the party’s] claim is not without foundation.” In re Nat’l Molding Co., 230 F.2d 69, 71 (3d Cir.1956). See also In re Weitzman, 381 B.R. 874, 880 (Bankr.N.D.Ill.2008) (“Generally, the court should not give its permission unless it is convinced that the movant has a prima facie case against the trustee.”), In re Weisser Eyecare, Inc., 245 B.R. 844, 848 (Bankr.N.D.Ill.2000) (“Before leave to sue a trustee may be obtained, the claimant must be able to plead the elements of a prima facie case against the trustee.”). “In evaluating whether the prima facie standard has been satisfied the plaintiff is entitled to the resolution in its favor of all disputes concerning relevant facts presented in the record.” Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.2010) (internal quotation marks omitted). B. Fraudulent inducement As the Court has stated, to make out a prima facie ease of fraudulent inducement, a party" } ]

[ { "docid": "22635372", "title": "", "text": "we believe, serve the Congressional purpose of awarding sufficient compensation to attract competent counsel. Therefore, Mr. Lucas will be awarded $137.50 per hour for his trial work, and $82.50 per hour for his in-office work. Mr. Noel will be compensated at a rate of $66 per hour for the time he devoted to this cause, and Mr. Fields will receive $44 per hour. The total compensation we award to the attorneys in this case is set out in chart form below: Mr. Lucaa: 32 hrs. (trial time) less 1.6 hrs. (5% duplication reduction) '30.4 hrs. x 137.50 hrs. (reasonable hourly rate) $4,180.00 29.5 hrs. (office time) less 1.5 hrs. (5% duplication reduction) 28 hrs. x 82.50 (reasonable hourly rate) $2,310.00 Mr. Noel: 81.75 hrs. less 4.09 hrs. (5% duplication reduction) 77.66 hrs. x 66.00 (reasonable hourly rate) $5,125.56 Mr. Fields: 128 hrs. less 6.4 hrs. (5% duplication reduction) 121.6 hrs. x 44.00 (reasonable hourly rate) $5,544.00 C. Costs and Out-of-Pocket Expenses: In its ruling, the district court awarded the plaintiffs all of their expenses except that it cut the claimed expenses for an expert witness and for preparation of a student locator map by half, finding that these large expenses were incurred without prior approval of the court and were excessive. These items are recoverable, if at all, pursuant to the court’s sound discretion under 28 U.S.C. § 1920. We will not disturb the conclusions of the district court on this matter. The district court also reduced by half the duplicating expenses claimed by the plaintiffs’ attorneys. These fees are recoverable under 42 U.S.C. § 1988 as a part of attorneys’ fees, and are subject to closer review by this court. We believe that the plaintiffs have demonstrated that their duplicating expenses were reasonable in view of the large number of documents involved in this hearing. We are mindful of the frequent admonitions received by counsel in this Circuit, both from this Court and trial judges, to ensure that they are prepared with adequate numbers of copies of all relevant documents for the lawyers and judges involved, so that our" } ]

[ { "docid": "14847202", "title": "", "text": "this litigation, the fee requested is reasonable for the time, effort and risk involved. The sixth factor, the amount of time devoted by counsel, supports the fee amount. Class counsel documents 2,857.65 hours of contingent work on this litigation, justifying the amount requested in their petition. This determination is confirmed by the reasonable outcome of the lodestar cross-check, as discussed below. The seventh Gunter factor, the awards granted in similar cases, also supports the fee amount. The percentage of 30% requested by class counsel is within the range the percentages granted in similar cases and class action settlements generally. A study referenced by another court in this district analyzed 289 class action settlements ranging from under $1 million to $50 million and determined that the average attorneys’ fees percentage to be 31.71% and the median to be one-third. In re Rite Aid Corp. Securities Litigation, 146 F.Supp.2d 706, 735 (E.D.Pa.2001) (affirming a fee amount of 25%). Furthermore, a 30% fee percentage is commensurate with other strip-search class actions conducted by class counsel. Under the Gunter factors, then, an attorneys’ fee award of 30% of the fund is reasonable. The lodestar cross-check analysis further supports the reasonableness of the attorney’s fees. Under the lodestar method, the court calculates the proper fee by multiplying the number of hours spent on the litigation by an appropriate hourly rate. See In re General Motors, 55 F.3d at 819 n. 37. Although the resulting multiplier need not fall within any pre-defined range, the Court of Appeals for the Third Circuit has noted that multiples ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied. See In re Prudential, 148 F.3d at 341. In this case, class counsels’ requested fee produces a multiplier of 2.3 using the historic rate calculation, a method by which hours expended by each attorney are grouped into historical time periods and multiplied by the attorney’s hourly rate for that time period. A multiple of 2.3 reached under the historic rate calculation is safely within the reasonable multiplier range and confirms the reasonableness of" }, { "docid": "9781963", "title": "", "text": "award of Rela-tors’-Share Litigation attorneys’ fees, legal expenses, and costs to Walsh. VI In ordering GE to pay the relators’ attorneys’ fees of $2,329,228.50 and costs and expenses of $226,875.17, the court expressed its recognition that Hall & Phillips would be collecting “an extraordinarily high rate of compensation for legal services.” The court stated that it nevertheless had no choice but to award the lodestar-based figure to the relators’ attorneys. GE argued that the judge misconstrued the law because he had authority to exercise discretion and to refuse to award a sum that virtually duplicated the separately contracted 25% contingency fee. However, the court repeated its understanding that it was constrained by the statute, 31 U.S.C. § 3730(d)(1), to award fees that faithfully followed the lodestar. Moreover, the court cited Venegas v. Mitchell, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990), for the proposition that it is permissible for attorneys to recéive both a statutory fee-shifting award and a separately contracted contingency fee in the same case. The relators and their attorneys reply to this element of GE’s appeal, noting that the statute specifically awards attorneys’ fees, legal expenses, and costs to the victorious qui tam plaintiffs, and those payments are to be made by the defendant. 31 U.S.C. § 3730(d)(1). As for the separately negotiated contingency-fee agreement between the relators and their counsel — that was a separate deal. Although GE observes that Hall & Phillips ultimately received more than $4 million, an amount equal to more than 35% of their Ghent’s $11,300,000 bounty, the numbers can also be viewed from another perspective. Much of the firm’s preliminary work and research laid the groundwork for the govern ment to step in and settle the FCA civil claim against GE, ultimately resulting in a total $75 million recovery for the government and the relators. Hall & Phillips had prudently directed Walsh to document his charges, to create a record of the false claims, and to cooperate with the government. The law firm brought the action that convinced the government, which delayed intervening for more than eight months, to" }, { "docid": "20330786", "title": "", "text": "it did not affect the right of FRS and its attorneys to pursue this appeal for the purposes of challenging the district court’s denial of an award of attorneys’ fees and expenses against Crescent City. II. 31 U.S.C. § 3730(d)(1) provides that qui tam relators shall receive, in addition to any share of the proceeds of the litigation or settlement of the underlying qui tam action, “an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs,” such expenses, fees, and costs to be awarded “against the defendant.” Only those parties that are properly a part of the qui tam action are statutorily entitled to the award of attorneys’ fees and expenses. United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032, 1044 (6th Cir.1994) (noting that attorneys for qui tam relator who has no standing are not entitled to attorneys’ fees). Thus, Koerner’s and Piper’s statutory entitlement to attorneys’ fees depends in the first instance upon their chent’s status as a party in the ease. We hold that FRS was not a proper party to this litigation and that therefore FRS’s attorneys, Koerner and Piper, are not entitled to attorneys’ fees and expenses. A. 31 U.S.C. § 3730(e)(4)(A) limits the subject matter jurisdiction of courts adjudicating qui tam actions under the False Claims Act. It provides: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, of from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. Following the statutory framework, we ask 1) whether there has been a “public disclosure” of allegations or transactions, 2) whether the qui tam action is “based upon” such publicly disclosed allegations, and 3) if so, whether the relator is the “original source” of the information. Cooper v. Blue Cross & Blue Shield of" }, { "docid": "23484348", "title": "", "text": "and information he possessed on the United States Attorney for the Middle District of Florida and upon the Attorney General of the United States. In addition, Williams filed his complaint in camera and under seal. Although the United States at oral argument advanced several public policy justifications for a requirement that the private qui tam relator give the government an opportunity to file suit on its own behalf before that relator initiates a qui tam action on behalf of the government, nothing in the False Claims Act mandates such deference. Even if a government investigation was pending at the time Williams filed his qui tam complaint, such fact would not jurisdiction-ally bar Williams from initiating suit under the False Claims Act. . Section 3730(d) provides, in pertinent part: (d) Award To Qui Tam Plaintiff.&emdash;(1) If the Government proceeds with an action brought by a person under subsection (b), such person shall, subject to the second sentence of this paragraph, receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substan- tially contributed to the prosecution of the action.... Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be award- ed against the defendant. (2) Ifthe Government does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the action or settlement and shall be paid out of such proceeds. Such person shall also receive an amount for rea- sonable expenses which the court finds to have been necessarily incurred, plus reason- able attorneys’ fees and costs. All such ex- penses, fees, and costs shall be awarded against the defendant. 31 U.S.C. 31 U.S.C.§" }, { "docid": "6275141", "title": "", "text": "notice and a fairness hearing, entered a stipulated judgment. The amount of the settlement was roughly $18,475,500, which, with accumulated interest, increased to approximately $19,731,690 by September 2000. The class notice stated that Plaintiffs’ counsel would seek 10 percent of the funds recovered as attorney’s fees. No class member filed an objection to that amount. Plaintiffs’ counsel mailed a survey to each class member (approximately 6,500 agents) seeking feedback on the requested fee. Roughly 1,179 class members responded, supporting an average fee of 8.6 percent and a median fee of 10 percent. E. The September 3,1999 Order After entry of the judgment, Plaintiffs’ counsel applied for an award of attorney’s fees and costs, requesting 10 percent, or $1,847,500, of the settlement fund. On September 3, 1999, the district court again denied counsel’s request to calculate fees by the percentage-of-the-fund method, and reaffirmed its earlier decision to calculate fees under the lodestar method. The court then determined the hours for which Plaintiffs’ counsel were to be compensated. These findings are undisputed. With respect to the hourly fee, the court reaffirmed its determination of a “generous” combined hourly rate of $300. After noting that the use of a multiplier is the exception rather than the rule, the district court awarded a 1.5 multiplier for counsel’s 100 percent success rate. The court declined, however, to apply a multiplier for the contingent nature of the case and the risk of nonpayment. Although Plaintiffs’ counsel argued that it took years for Plaintiffs to obtain counsel and that Equitable was a “tough adversary,” both of which increased the “undesirability” of the case, the court restated its reasoning in the June 1997 order and refused to apply a risk multiplier. The district court also declined to adjust the attorney’s fee award for any delay in payment. After applying the 1.5 multiplier, the court awarded $572,413.50 in attorney’s fees, plus expenses, for a total award of $686,226.25, or approximately 3 percent of the settlement fund. F. The May 5, 2000 Order Plaintiffs’ counsel moved to amend the September 1999 order, requesting, among other things, interest on the amount" }, { "docid": "9781926", "title": "", "text": "a total payment of more than $75 million to the United States Treasury. 1. The Relators’-Share Litigation A hearing was held in United States district court, pursuant to 31 U.S.C. § 3730(d)(1), to determine the relators’ share of the civil-damages settlement. We note that the “relators’ share” is paid from the amount recouped by the government; therefore, the government has an interest in minimizing that share. The court awarded the relators 22.5% of the $59.5 million, nearly the maximum percentage permitted by statute. The United States filed a notice of appeal, seeking to reduce that award, and the rela-tors settled with the government for about 19% of the settlement, or approximately $11,-300,000. Hereinafter, we shall refer to this litigation between the United States and the relators as “the Relators’-Share Litigation.” 2. The Attorneys’ Fees Litigation After the Relators’-Share Litigation ended, the relators moved in federal district court, pursuant to 31 U.S.C. § 3730(d)(1), to recoup from GE their reasonable attorneys’ fees and costs, as well as their reasonable and necessarily incurred legal expenses. GE sharply challenged the relators’ claims on a number of grounds. However, the district judge ordered GE to pay $2,329,228.50 in attorneys’ fees and $226,875.17 in costs and expenses. The law firm of Hall & Phillips provided approximately 80% of Walsh’s, and nearly all of TAF’s, legal services. Therefore, that firm’s share of the relators’ attorneys’ fees exceeded $1.8 million. Hereinafter, we shall refer to this litigation, which pitted GE against the relators and their attorneys, as “the Attorneys’ Fees Litigation.” 3.The Contingency, Fee .Agreement In a separately negotiated arrangement, Walsh had promised to pay his legal counsel 25% of whatever bounty he ultimately collected from the qui tam action. Since Walsh received approximately $11,300,000 from the Relators’-Share Litigation, his contingency-payment agreement called for him to pay his attorneys approximately $2,825,000. Therefore, Hall & Phillips’s 80% portion of the contingency fee came to approximately $2,260,000. Thus, having won more than $1.8 million as its share of the fees that were awarded during the Attorneys’ Fees Litigation, Hall & Phillips’s total fees for its part in this qui" }, { "docid": "16760198", "title": "", "text": "for attorneys’ fees and expenses. In the petition, HMRP sought $2,758,748.12 in attorneys’ fees and $124,498.29 in reimbursable expenses, for a total of $2,883,246.41. The Shipbuilders allowed that they owed fees and expenses, but argued that the amount should total $1,110,789.85, representing $1,019,953.71 in attorneys’ fees and $90,836.14 in expenses. After considering the evidence offered by both parties, the district court ultimately awarded HMRP fees of $1,749,245.80 and expenses of $122,500.60, for a total amount of $1,871,746.40. In this appeal, the Plaintiff, HMRP, argues that the district court abused its discretion in the following three ways: (1) by using allegedly unsubstantiated 2004 billing rates instead of current, 2005 rates; (2) by refusing to award attorneys’ fees for litigation related to the fee petition itself; and (3) by refusing to enhance the award by 25% for “exceptional” results. The defendant Shipbuilders filed a cross-appeal, contending that the district court failed to exercise appropriate discretion in calculating the number of hours billed by the plaintiff; specifically, they fault the lower court for including — without sufficient explanation — hours in the lodestar valuation that were allegedly duplicative, unrelated to the litigation, or wasteful. III. Jurisdiction over the appeal The district court exercised subject matter jurisdiction over the federal question involved in this case — namely, the False Claims Act. See 31 U.S.C. § 3732(a). Appellate jurisdiction exists under 28 U.S.C. § 1291, as the district court issued a final order in this case. The Shipbuilders contend, however, that only the Relators could bring this appeal and that the case should thus be dismissed because HMRP is an improper party. For the reasons discussed below, the Plaintiff does have standing to proceed. The False Claims Act, 31 U.S.C. § 3730(d), provides for fee-shifting and includes both attorneys’ fees and expenses as part of the award to a successful qui tam plaintiff. The FCA reads in relevant part: “Such person [qui tam plaintiff] shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be" }, { "docid": "9781964", "title": "", "text": "to this element of GE’s appeal, noting that the statute specifically awards attorneys’ fees, legal expenses, and costs to the victorious qui tam plaintiffs, and those payments are to be made by the defendant. 31 U.S.C. § 3730(d)(1). As for the separately negotiated contingency-fee agreement between the relators and their counsel — that was a separate deal. Although GE observes that Hall & Phillips ultimately received more than $4 million, an amount equal to more than 35% of their Ghent’s $11,300,000 bounty, the numbers can also be viewed from another perspective. Much of the firm’s preliminary work and research laid the groundwork for the govern ment to step in and settle the FCA civil claim against GE, ultimately resulting in a total $75 million recovery for the government and the relators. Hall & Phillips had prudently directed Walsh to document his charges, to create a record of the false claims, and to cooperate with the government. The law firm brought the action that convinced the government, which delayed intervening for more than eight months, to pursue the claim. Thus, the United States Treasury enjoyed a windfall from the case that Hall & Phillips helped to unravel. Viewed in that light, the attorneys’ fees that the firm was awarded by the court under the FCA, together with the contingency fee that they received from their separate contract with Walsh, aggregated to less than 6% of the total bonanza that their efforts helped the government win. Furthermore, Hall & Phillips contends that GE would have no standing to oppose a deal in which Walsh had promised a college or a medical charity 25% of his bounty, nor could the company avoid its 31 U.S.C. § 3730(d)(1) obligation on such grounds. Therefore, if Walsh chose instead to earmark 25% of his bounty as payment to his attorneys, GE’s obligations should not be reduced. That argument, though superficially appealing, does not avail. Walsh could have contracted to give the Heart Fund, the Cancer Society, a chauffeur, or a cook 75% of his bounty, if he liked. However, under the rules of ethics adopted by" }, { "docid": "16760199", "title": "", "text": "— hours in the lodestar valuation that were allegedly duplicative, unrelated to the litigation, or wasteful. III. Jurisdiction over the appeal The district court exercised subject matter jurisdiction over the federal question involved in this case — namely, the False Claims Act. See 31 U.S.C. § 3732(a). Appellate jurisdiction exists under 28 U.S.C. § 1291, as the district court issued a final order in this case. The Shipbuilders contend, however, that only the Relators could bring this appeal and that the case should thus be dismissed because HMRP is an improper party. For the reasons discussed below, the Plaintiff does have standing to proceed. The False Claims Act, 31 U.S.C. § 3730(d), provides for fee-shifting and includes both attorneys’ fees and expenses as part of the award to a successful qui tam plaintiff. The FCA reads in relevant part: “Such person [qui tam plaintiff] shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.” 31 U.S.C. § 3730(d)(2). Notably, “only the plaintiff has the power to demand that the defendant pay the fees of the plaintiffs attorney” under the FCA; without such a demand, the defendant is under no obligation to pay. United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., 89 F.3d 574, 578 (9th Cir.1996), cert. denied, 519 U.S. 1109, 117 S.Ct. 945, 136 L.Ed.2d 834 (1997). “Once the power is exercised, however, the attorneys’ right vests, and the defendant’s duty becomes fixed.” Id. at 578. Because the Relators, through a motion filed by Volkema, did seek attorneys’ fees on behalf of HMRP, the Defendants’ duty to pay such fees vested. The Defendants point to several instances where courts have denied requests for attorneys’ fees to support their argument. But in each of the cases the Defendants cite, the court refused attorneys’ fees because the Relators never sought them. See, e.g., United States ex rel. Thornton v. Science Applications Int’l Corp., 79 F.Supp.2d 655, 659 (N.D.Tex.1988) (noting that because" }, { "docid": "9781925", "title": "", "text": "basis of information that has already been publicly disclosed, id. § 3730(e)(4), or if someone else has filed the claim first. Id. § 3730(b)(5). The FCA qui tam statutes also contain a fee-shifting provision that aims at inducing “whistleblowers” to step forward and attorneys to pursue such actions: Any such [relator] shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’fees and costs. All such expenses, fees, and costs shall be awarded against the defendant. Id. § 3730(d)(1) (emphasis added). B In November 1990, Relators-Plaintiffs-Ap-pellees Walsh and Taxpayers Against Fraud (“TAF”) filed a qui tam action against GE under 31 U.S.C. § 3730, alleging that GE Aircraft had billed the United States Treasury for millions of dollars in false claims. The United States intervened in August 1991 and took the lead role in the prosecution. A settlement was reached before trial, in which GE agreed to pay $59.5 million in civil damages and $9.5 million in criminal fines, as well as $6,158,301 in restitution, for a total payment of more than $75 million to the United States Treasury. 1. The Relators’-Share Litigation A hearing was held in United States district court, pursuant to 31 U.S.C. § 3730(d)(1), to determine the relators’ share of the civil-damages settlement. We note that the “relators’ share” is paid from the amount recouped by the government; therefore, the government has an interest in minimizing that share. The court awarded the relators 22.5% of the $59.5 million, nearly the maximum percentage permitted by statute. The United States filed a notice of appeal, seeking to reduce that award, and the rela-tors settled with the government for about 19% of the settlement, or approximately $11,-300,000. Hereinafter, we shall refer to this litigation between the United States and the relators as “the Relators’-Share Litigation.” 2. The Attorneys’ Fees Litigation After the Relators’-Share Litigation ended, the relators moved in federal district court, pursuant to 31 U.S.C. § 3730(d)(1), to recoup from GE their reasonable attorneys’ fees and costs, as well as their reasonable and necessarily incurred legal expenses. GE sharply" }, { "docid": "19158795", "title": "", "text": "and the rate of compensation requested. B. Calculating Attorneys’ Fees Once a court determines that the removal was improper, § 1447(c) gives a court discretion to determine what amount of costs and fees, if any, to award the plaintiff. Avitts v. Amoco Production Co., 111 F.3d 30, 32 (5th Cir.1997). The Fifth Circuit has interpreted the language “incurred as a result of removal” to limit the litigation expenses that may be awarded under this section to fees and costs incurred in federal court that would not have been incurred had the case remained in state court. Avitts, 111 F.3d at 32. In calculating attorneys’ fees, the court is to calculate the lodestar, which is the product of the number of hours reasonably expended on the litigation multiplied by a reasonable hourly billing rate. Worldcom, Inc. v. Automated Communications, Inc., 75 F.Supp.2d 526, 530 (S.D.Miss.1999) (diversity case where the contracts in question provided for the recovery of attorney’s fees and the court used the Johnson factors for guidance) (citations omitted). Uniform Local Rule 54.2(B) is titled “Motions for Attorneys’ Fees” and states in pertinent part: (3) In all motions for attorneys’ fees, movant shall, by affidavit of counsel, address the following factors relating to the determination of a reasonable allowance: (a) The time and labor required, including an itemized statement of all time expended by counsel and a brief description of the services performed during each period of time itemized. (b) The novelty and difficulty of the questions. (c) The skill requisite to perform the legal services properly. (d) The preclusion of other employment by the attorney due to acceptance of the case. (e) The customary fee. (f) Whether the fee is fixed or contingent. (g) Time limitations imposed by the client or the circumstances. (h) The amount involved and the results obtained. (i) The experience, reputation, and ability of the attorney(s). (j) The “undesirability” of the case. (k) The nature and length of the professional relationship with the client. (l) Awards in similar cases. These factors, originally set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19," }, { "docid": "9781975", "title": "", "text": "but we do record our dismay over the comments that we found during our review of the record, and which we have cited above. VIII For the foregoing reasons, we: (1) AFFIRM the constitutionality of the federal qui tarn statutes; (2) REVERSE the district court’s decision to deny GE all access to the transcript of Agent Kosky’s in camera deposition; (3) REVERSE the district court’s decision to award Relators’-Share Litigation attorneys’ fees, legal expenses and costs to the relators; (4) VACATE the remaining award of relators’ § 3730(d)(1) attorneys’ fees, pending further findings of .fact as to whether the relators’ timing in bringing their qui tarn action should affect the fee-shifting lodestar and pending determination of whether, consistent with the False Claims Act, TAF has standing to act as a co-plaintiff relator; and (5) REMAND this matter to the district court with instructions to conduct further proceedings consistent with this opinion, including making findings of fact concerning the reasonableness of any § 3730(d)(1) attorneys’ fees that are ultimately awarded. . Lit. \"who as well.” A \"whistleblowing” suit is called a \"qui tam action” because the plaintiff is one who sues for the government as well as for himself. Black's Law Dictionary 1126 (5th ed.1979). . If the government does not intervene and proceed with an action under 31 U.S.C. § 3730, the relator \"shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall not be less than 25 percent and not more than 30 percent of the proceeds of the action or settlement and shall be paid out of such proceeds.” Id. § 3730(d)(2). Such a relator also receives \"an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs.” Ibid. The expenses, fees, and costs are awarded against the defendant. . Earlier, during the Relators'-Share Litigation, the judge had said to the government’s attorney, who had been arguing that Walsh should have acted sooner: [Y]ou weren't there. It wasn’t you who were at risk.... When you discuss what [Walsh] could" }, { "docid": "9781950", "title": "", "text": "GE’s ability to litigate its opposition to Walsh’s claim for attorneys’ fees was unfairly affected by the court’s refusal to allow the company appropriate access to the Kosky deposition transcript and to Kosky himself. Therefore, we vacate the fees award and remand with instructions. IV In another assignment of error, GE argues that, even if Walsh and his counsel deserve attorneys’ fees under the qui tam laws, those fees should have been sharply reduced to reflect the relators’ allegedly deliberate scheme to delay filing an action, systematically “running up” attorneys’ fees and trebling the relators’-share bounty. GE does not challenge the authenticity of the lodestar numbers by which the court calculated fees. The company accepts that Walsh’s attorneys worked on the case for the amount of time that they claim, and GE accepts their hourly fee schedule as reasonable. Instead, GE claims that the action could have been filed in 1987, when Walsh first approached Attorney Phillips and the amount of false claims stood at $13.1 million. With the passage of three years, until Dotan’s 1990 arrest in Israel, the stakes had risen to $41.6 million. Therefore, citing the statutory text, GE claims that most of Walsh’s attorneys’ fees were not “reasonable,” and that the legal expenses were neither “reasonable” nor “necessarily incurred.” By contrast, Hall & Phillips contends that GE overstates the nature of the firm’s relationship with Walsh before 1989. Thus, the firm portrays the mid-1987 meeting between Walsh and Phillips as one in which Walsh merely sought “preliminary counsel.” At that time, he gave Phillips a false name, and he refused to leave an address where he could be reached. It was only in mid-1989, when Walsh left Israel for good and also shipped his documents out of that country, that the law firm could seriously undertake the preliminary research necessary to assess the merits of Walsh’s charges. Indeed, Walsh did not formally engage the firm as legal counsel until the spring of 1990. By then, Hall & Phillips had been working assiduously, evaluating and researching Walsh’s accounts of fraud and false claims. Their inquiry entailed comprehensive" }, { "docid": "9781927", "title": "", "text": "challenged the relators’ claims on a number of grounds. However, the district judge ordered GE to pay $2,329,228.50 in attorneys’ fees and $226,875.17 in costs and expenses. The law firm of Hall & Phillips provided approximately 80% of Walsh’s, and nearly all of TAF’s, legal services. Therefore, that firm’s share of the relators’ attorneys’ fees exceeded $1.8 million. Hereinafter, we shall refer to this litigation, which pitted GE against the relators and their attorneys, as “the Attorneys’ Fees Litigation.” 3.The Contingency, Fee .Agreement In a separately negotiated arrangement, Walsh had promised to pay his legal counsel 25% of whatever bounty he ultimately collected from the qui tam action. Since Walsh received approximately $11,300,000 from the Relators’-Share Litigation, his contingency-payment agreement called for him to pay his attorneys approximately $2,825,000. Therefore, Hall & Phillips’s 80% portion of the contingency fee came to approximately $2,260,000. Thus, having won more than $1.8 million as its share of the fees that were awarded during the Attorneys’ Fees Litigation, Hall & Phillips’s total fees for its part in this qui tam action amounted to more than $4 million, approximately half payable by the relators from their $11.3 million bounty and half payable by GE from its corporate funds. Usually, a statutory fee would be awarded to the plaintiff rather than to the lawyers. Evans v. Jeff D., 475 U.S. 717, 730, 106 S.Ct. 1531, 1538-39, 89 L.Ed.2d 747 (1986). The plaintiff could then use the statutory fee to satisfy the contingency fee. In this case, though, Walsh’s contract with Hall & Phillips calls for him to pay the statutory fee to Hall & Phillips in addition to any contingency fees. C GE contended throughout the course of the Attorneys’ Fees Litigation that Walsh had participated in GE Aircraft’s fraud against the United States. Because GE settled the qui tam action prior to trial, the facts concerning GE Aircraft’s false claims and Walsh’s exact role in that fraud were never fully determined in a court of law. At one point during the final day of the Attorneys’ Fees Litigation, the district court said that “[tjhere is" }, { "docid": "9297511", "title": "", "text": "DAVID G. LARIMER United States District Judge Plaintiff Joni Eades (\"plaintiff\") and Levere C. Pike, Jr. (now deceased) brought this action against Kennedy, PC Law Offices, a debt collection firm, alleging claims of unfair debt collection practices pursuant to the Fair Debt Collection Practices Act (\"FDCPA\"), 15 U.S.C. § 1692 et seq. Familiarity with the procedural history of the matter is presumed. After six years of litigation, following which a single claim remained, the parties settled that claim by stipulation (the \"Settlement\") dated August 21, 2018. (Dkt. # 85-1). Pursuant to the Settlement, defendant agreed to pay Eades' costs and reasonable attorney's fees, as determined by the Court. To that end, on September 28, 2018 (Dkt. # 87), plaintiff moved for an award of attorney's fees in the amount of $130,850.00, representing over 370 billable hours, plus $6,243.26 in expenses. Defendant opposes the motion, arguing that plaintiff's two sets of counsel engaged in duplicative efforts, incurred unnecessary costs, and protracted the litigation by failing to file a pleading which stated a viable cause of action until three-and-a-half years into the action, after the majority of the attorney's fees that are now sought had already been incurred. Defendants also emphasize that the amount of attorney's fees requested is grossly disproportionate to the $13,500.00 settlement amount. In the Second Circuit, \"[t]he lodestar approach governs the initial estimate of reasonable fees.\" Grant v. Martinez , 973 F.2d 96, 99 (2d Cir.1992). Under this approach, \"the number of hours reasonably expended on the litigation [are] multiplied by a reasonable hourly rate.\" Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ; Grant , 973 F.2d 96 at 99. The Court has broad discretion to determine whether the hours expended and the rates charged are reasonable, and the fee applicant has the burden to establish the reasonableness of both. Hensley , 461 U.S. 424 at 433, 103 S.Ct. 1933 ; Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany , 522 F.3d 182, 190 (2d Cir. 2008). Application of the lodestar \"creates a presumptively reasonable fee.\" Goser v." }, { "docid": "9781940", "title": "", "text": "Only the government’s attorneys were present at the Ko-sky deposition, and the court ordered the transcript of the Kosky testimony sealed. Therefore, neither the relators’ attorneys nor GE’s counsel heard or have read what Kosky said. On December 4,1992, the court awarded the relators a 22.5% share of the civil recovery. As noted above, the relators ultimately settled for $11,300,000, comprising approximately 19% of the civil recovery. 2. The “Attorneys’ Fees” Litigation The losing defendant in an FCA qui tam action must pay the reasonable attorneys’ fees and court costs of the victorious relators, •as well as all reasonable and necessarily incurred expenses. 31 U.S.C. § 3730(d)(1). In the second collateral dispute, the district court conducted a two-day hearing to determine the appropriate fees, expenses, and costs to award against GE. Walsh and one of his attorneys, Mary Cohen, testified. During the course of earlier status conferences that were held in June and July 1992, there were a few testy exchanges between the district judge and GE’s attorneys, in which the judge made statements indicating that he had tried prior litigation involving GE and had emerged from those experiences with a negative impression of the corporation. In one such statement the judge said: “[Pjerhaps I shouldn’t let my views of General Electric and the Justice Department as they have been displayed to me in the past interfere with this case. Maybe you guys have turned over a new leaf. I doubt it, but maybe.” In another such statement, the judge asked defense counsel to pass along a message: “You tell your client that they’re in enough trouble with me, because I don’t trust them to this day.” The judge also said, “One thing I might suggest to [GE] is start hiring honest people.” Hall & Phillips prepared a breakdown of the billable hours that their attorneys had worked on the case, and the firm submitted its rate schedule for legal services. GE stipulated to the reasonableness of the rates and most of the hours. However, GE raised a number of policy-based objections, which the court rejected and which comprise the" }, { "docid": "19823045", "title": "", "text": "sums received by BCBSF from third parties in settlement of several collateral claims should be added to this figure. Specifically, in addition to the settlement between the United States and BCBSF, this global settlement included a compromise and settlement of an administrative claim by BCBSF against the Health Care Financing Administration as well as a claim against GTE Data Services, Inc. However, the settlement of these collateral claims are only incidental to this qui tam action and should not be considered when determining the Relator’s percentage of the settlement proceeds pursuant to §. 3730(d)(1). Accordingly, the Relator is entitled to 15% of the $10 million settlement, or $1.5 million, pursuant to § 3730(d)(1) of the FCA. C. Attorney’s Fees And Costs Federal courts have applied the standard .“lodestar” methodology in determining a reasonable amount of attorneys’ fees in qui tam actions. Stern, 818 F.Supp. at 1522; United States v. General Electric, 808 F.Supp. 584, 585 (S.D.Oh.1992) (citing Northcross v. Bd. of Educ. of Memphis City Schools, 611 F.2d 624 (6th Cir.1979)). The “starting point” for setting an attorney’s fee is to determine the lodestar figure: the number of hours -reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 438, 103 S.Ct. 1933, 1939, - 76 L.Ed.2d 40 (1983); Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988); Bowen v. Southtrust Bank of Alabama, 760 F.Supp. 889, 896 (M.D.Ala. 1991). In making this determination, the district court is guided by the 12 factors identified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform, the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney;" }, { "docid": "9781942", "title": "", "text": "crux of this appeal. As noted above, the court ordered GE to pay a total of $2,329,228.50 in attorneys’ fees, as well as $226,875.17 in costs and expenses. Hall & Phillips’s share of that award exceeded $1.8 million. Consequently, when combined with the $2.26 million that it received in contingency fees, Hall & Phillips emerged from this FCA action with combined fees of more than $4 million. General Electric appeals from the award of attorneys’ fees, expenses, and costs. II GE maintains that the qui tam provisions of the FCA are unconstitutional. Therefore, the entire statutory framework under which GE has been ordered to pay Walsh’s attorneys’ fees, expenses, and costs is invalid. First, GE argues that, while Congress may surely offer financial incentives to private citizens to bring fraudulent practices to the government’s attention, the legislative branch may not “deputize” private citizen volunteers to prosecute claims in the name of the United States government. Rather, the prosecutorial function is an executive-branch responsibility. Second, GE contends that the qui tam scheme seriously interferes with the executive’s prosecutorial discretion. Among its major concerns, GE warns that a relator may file an action too soon, leading to the premature disclosure of a tightly guarded, meticulously conducted investigation by the Justice Department. Similarly, a relator may bring a case that the United States does not want to prosecute currently, thereby precluding the government from pursuing that action later. Finally, while recognizing that qui tam provisions have been in our statutes from the time of the First Congress, GE observes that other laws enacted by the First Congress have ultimately been declared unconstitutional. We note that these same issues were raised recently before the Ninth Circuit in the first-impression ease of United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1125, 127 L.Ed.2d 433 (1994). That court unequivocally rejected the same constitutional challenge. We join with our sister circuit in upholding the constitutionality of the federal qui tam laws. The qui tam provisions adopted by Congress do not contradict the constitutional principle of" }, { "docid": "9781937", "title": "", "text": "that 95% of its expenses have been incurred as legal fees to Hall & Phillips, and it was founded substantially by John R. Phillips. GE portrays TAF as a Hall & Phillips front. Because the record insufficiently addresses this matter, we shall hereinafter use the nouns “relators” and “Walsh” interchangeably. The action remained under seal for nine months, as the United States requested extensions of the statutory sixty-day seal, 31 U.S.C. § 3730(b)(2), citing “national security concerns” and the need to obtain evidence from Israel and elsewhere. In July 1991, the court turned down a government request to seal the case further. As a result, the Justice Department exercised its statutory right to intervene and took control of the case’s prosecution. The government pursued an out-of-court settlement with GE, and the parties agreed a year later, in July 1992, that GE would pay the unprecedented sum of $59,500,000 in civil damages to settle the case, as well as $6,158,301 in restitution, representing the funds found in the Dotan-Steindler Swiss accounts. The court dismissed the case, retaining jurisdiction to decide two collateral matters: (1) the relators’ share of the civil settlement, and (2) GE’s obligations to pay Walsh’s attorneys’ fees, legal expenses, and court costs under the qui tarn fee-shifting provision. 1. The “Relators’-Share” Litigation The first collateral dispute was between the relators and the government over the division of the GE civil settlement. The day that the settlement was reached, GE issued a press release, stating that “Mr. Walsh ‘should receive no bounty or sharply reduced bounty.’ ” See Amal Kumar Naj, “General Electric Pleads Guilty, Pays $69 Million to Settle Whistleblower Suit,” Wall St. J., July 23, 1992, at A2. The corporation then began to press the government to withhold awarding a bounty to Walsh or TAF. For the next four months, Walsh and TAF were unable to reach an agreement with the government concerning a mutually acceptable relators’ share of the settlement. After extensive discovery, the parties brought their dispute to district court for a hearing that began on November 2, 1992. The court excluded GE, over its" }, { "docid": "9781941", "title": "", "text": "that he had tried prior litigation involving GE and had emerged from those experiences with a negative impression of the corporation. In one such statement the judge said: “[Pjerhaps I shouldn’t let my views of General Electric and the Justice Department as they have been displayed to me in the past interfere with this case. Maybe you guys have turned over a new leaf. I doubt it, but maybe.” In another such statement, the judge asked defense counsel to pass along a message: “You tell your client that they’re in enough trouble with me, because I don’t trust them to this day.” The judge also said, “One thing I might suggest to [GE] is start hiring honest people.” Hall & Phillips prepared a breakdown of the billable hours that their attorneys had worked on the case, and the firm submitted its rate schedule for legal services. GE stipulated to the reasonableness of the rates and most of the hours. However, GE raised a number of policy-based objections, which the court rejected and which comprise the crux of this appeal. As noted above, the court ordered GE to pay a total of $2,329,228.50 in attorneys’ fees, as well as $226,875.17 in costs and expenses. Hall & Phillips’s share of that award exceeded $1.8 million. Consequently, when combined with the $2.26 million that it received in contingency fees, Hall & Phillips emerged from this FCA action with combined fees of more than $4 million. General Electric appeals from the award of attorneys’ fees, expenses, and costs. II GE maintains that the qui tam provisions of the FCA are unconstitutional. Therefore, the entire statutory framework under which GE has been ordered to pay Walsh’s attorneys’ fees, expenses, and costs is invalid. First, GE argues that, while Congress may surely offer financial incentives to private citizens to bring fraudulent practices to the government’s attention, the legislative branch may not “deputize” private citizen volunteers to prosecute claims in the name of the United States government. Rather, the prosecutorial function is an executive-branch responsibility. Second, GE contends that the qui tam scheme seriously interferes with the" } ]

[ { "docid": "1268230", "title": "", "text": "the instant case is readily distinguished from the circumstances of Allen. The Supreme Court decided a Voting Rights Act case in 1971 in which the appellants sought to have certain elections set aside. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). The determination of an appropriate remedy was left for the District Court. The Su preme Court, however, observed that some considerations in the determination might include the nature of the election-procedure changes complained of and whether it was reasonably clear at the time of the election that the changes were covered by Section 5. The Court further suggested that officials should be given an opportunity to seek approval of the changes and that a new election should be required only if they refused to do so or if approval is not forthcoming. Id. at 396-97, 91 S.Ct. at 440-441. In 1978 the Supreme Court implemented the relief suggested in Perkins: affording local officials the opportunity to apply for federal approval of a voting change under Section 5 instead of ordering a new election. Berry v. Doles, 438 U.S. 190, 193, 98 S.Ct. 2692, 2694, 57 L.Ed.2d 693 (1978) (per curiam). Such remedy is clearly inapplicable to the present Defendant since it did attempt to have the voting change approved by the Attorney General before the election took place. The fact that federal authorization of the election was denied rendered the holding of the election unlawful and its legally unenforceable results shall be set aside. Preelection relief having been sought by the Coalition and improperly refused, the election now will be set aside. See Hamer v. Campbell, 358 F.2d 215, 222 (5th Cir.), cert. denied, 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79 (1966). Section 14(e) of the Act gives the court discretion to award the prevailing party, other than the United States, reasonable attorneys’ fees as part of the costs. 42 U.S.C. § 19731(e). The legislative history of the 1975 amendments to the Act characterizes the fee awards as essential to the full enforcement of the applicable constitutional requirements and federal statutes. 5." } ]

[ { "docid": "13886645", "title": "", "text": "held as scheduled under the at-large plan. Since the Supreme Court summarily affirmed Hale County, the majority apparently seeks to distinguish the case on the basis of the timing of the plaintiff’s claim. Where the majority discovered the file date of Hale County on which to base its “timing” distinction I have no idea because it is not mentioned in the three-judge court’s opinion or in the Supreme Court’s summary affirmance. A reading of the cases reveals that enjoining an election for an indefinite time until preclearance is obtained is the exceptional remedy rather than the normal one. See City of Richmond, Va. v. United States, 376 F.Supp. 1344, 1351 & n. 39 (D.D. C.1974); Beer, supra. The Supreme Court considered the issue of appropriate remedies for violations of § 5 of the Act in Perkins, supra. The Perkins court declined to order a new election to displace representatives elected under an unapproved plan and remanded to the district court to fashion an appropriate remedy in light of the circumstances of the case and the “nuances of the local situation.” 400 U.S. at 396-97, 91 S.Ct. 431. The Court recently declined a like invitation in Berry v. Doles, supra. This case calls for even closer scrutiny of the circumstances than Perkins and Doles, because plaintiffs seek to deprive the voters of the city of the right to vote for representatives in city government for an indefinite time. In Perkins and Doles, voters had exercised their right to vote and the burden of a new election under a court ordered plan would fall upon the city government and the candidates rather than upon the voters. Since the Act is ultimately concerned with protection of the right to vote, a court should be even more cautious when asked to postpone indefinitely an election than when asked to order a new election. I recognize that in Holt v. Richmond, 406 U.S. 903, 92 S.Ct. 1602, 31 L.Ed.2d 814 (1972), three justices of the Supreme Court granted an application to enjoin upcoming city elections under an unapproved plan, even though the incumbents had been" }, { "docid": "4467482", "title": "", "text": "plan are the most equitable under the circumstances. In Perkins v. Matthews, 400 U.S. at 396-97, 91 S.Ct. at 440-41, the Supreme Court refused to order new elections even though elections had been conducted under a plan that had not been precleared. The Court went on to explain: In certain circumstances, for example, it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming. Since the District Court is more familiar with the nuances of the local situation than are we, and has heard the evidence in this case, we think the question of the appropriate remedy is for that court to determine, in the first instance, after hearing the views of both parties. In Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), the Supreme Court permitted elections to take place under a statewide apportionment plan to which an objection had been interposed. In Horry County v. United States, the District Court for the District of Columbia stated in dicta that [t]he Supreme Court has recognized the equitable power of the District Courts to permit enforcement of such [apportionment] statutes pendente lite notwithstanding Section 5. Georgia v. United States, 411 U.S. 526, 541, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 396-397, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). 449 F.Supp. 990, 996 (D.D.C.1978). Thus, based upon Perkins v. Matthews and Georgia v. United States, the grant of equitable temporary relief by this Court through the use of districts that are the subject of Section 5 objections is not per se contrary to the prohibitions of Section 5. As emphasized in Georgia, it is equitable considerations which determine what temporary plan should be utilized. In devising our temporary plans for the reapportionment of the Texas Senate and House, we have been governed by the foregoing principles. We have elected to honor the valid and unchallenged portions of the legislative judgment. With" }, { "docid": "1268229", "title": "", "text": "(1969), because Section 5 coverage was then an issue of first impression, the state enactments were not so clearly subject to the Section that a failure to submit them for approval constituted deliberate defiance of the Act, and the discriminatory purpose or effect of the statutes had not yet been determined by any court. At the time of the election which is the subject of the present controversy, the Defendant apparently acknowledged the Section 5 coverage of the changed election procedures. This was evidenced by the Defendant’s request to the Attorney General in a letter received on December 17, 1976, that he preclear the January 15, 1977 election (Stipulation ¶ 14). The discriminatory purpose or effect of the proposed voting changes accompanying the January 15 election was determined by the Attorney General, and he interposed an objection to the special election in a letter dated January 13, 1977 (Stipulation ¶ 15). The holding of the election by the Defendant despite the Attorney General’s refusal to approve it was in deliberate defiance of the Act. Thus the instant case is readily distinguished from the circumstances of Allen. The Supreme Court decided a Voting Rights Act case in 1971 in which the appellants sought to have certain elections set aside. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). The determination of an appropriate remedy was left for the District Court. The Su preme Court, however, observed that some considerations in the determination might include the nature of the election-procedure changes complained of and whether it was reasonably clear at the time of the election that the changes were covered by Section 5. The Court further suggested that officials should be given an opportunity to seek approval of the changes and that a new election should be required only if they refused to do so or if approval is not forthcoming. Id. at 396-97, 91 S.Ct. at 440-441. In 1978 the Supreme Court implemented the relief suggested in Perkins: affording local officials the opportunity to apply for federal approval of a voting change under Section 5 instead of" }, { "docid": "10828308", "title": "", "text": "to choose from among the several plans urged for adoption in these proceedings. Cf. Terrazas v. Clements, 537 F.Supp. 514, at 520-521 (N.D.Tex.1982) (three-judge court). Mississippi is precluded by the express terms of § 5 from implementing S.B. 2001 so long as it remains unprecleared. See Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Dotson v. City of Indianola, 521 F.Supp. 934 (N.D.Miss.1981) (three-judge court). Section 5, however, does not by its terms prohibit a federal district court from utilizing, on an interim basis, an unprecleared plan. Indeed, it would be a rare case in which a federal court, compelled to devise an interim redistricting plan, would have opportunity to place into effect a plan that had been precleared under § 5. Although circumstances might arise in which a federal court could order, on an interim basis, implementation of an unprecleared legislative plan, we conclude that any action by this court to so order S.B. 2001 into effect would be an injudicious exercise of our equitable remedial power. We base this view on several factors indisputably present in this case. When S.B. 2001 was submitted, it . was specifically objected to by the Attorney General, who concluded that it violated § 5. Insofar as this court’s interim plan-making task is controlled by the Voting Rights Act, we may not substitute our judgment for that of the Attorney General. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). The proceedings under that Act which the State of Mississippi has instituted in the District Court of the District of Columbia will determine whether S.B. 2001 passes statutory muster for permanent use. It would be both inappropriate and unseemly for us to implement on a temporary basis the plan which those proceedings seek to preclear since we have other plans which will allow us to order temporary redistricting which adequately reconciles state political policy with federal statutory and constitutional standards. For these reasons the court rejects the defendants’" }, { "docid": "13814968", "title": "", "text": "N.A.A.C.P. v. Hampton County Election Commission, 470 U.S. 166, 181-82, 105 S.Ct. 1128, 1137, 84 L.Ed.2d 124 (1985). That task is specifically reserved for the United States Attorney General or the United States District Court for the District of Columbia. The question, instead, for us is whether the change has the potential for discrimination. Id. The reality here of the potential effect of the resolution on the black citizens of Perry County is glaring and unavoidable. After the resolution, the predominantly black population of Perry County lost control over the public schools in the City of Marion; the public schools in the city were no longer controlled by a board accountable to a predominantly black county, but rather by a board accountable to a city council elected by a predominantly white city population. The 1965 resolution therefore did have a potential for discrimination and should have been precleared under § 5. III. The final issue for us is what relief is appropriate. The circumstances of this case convince us that we should stay our hand until the City of Marion has had an opportunity to obtain preclearance of the resolution. If the city obtains preclearance, the city will surely then argue that the need for relief by this three-judge court is moot. If the city fails to obtain preclearance, then this court will be squarely faced with the question of relief. We understand that several months ago the city submitted a request to the Attorney General to preclear the resolution, but that the city did not press for an answer from the Attorney General until recently. We will give the city 60 days from this date to obtain preclearance. See Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 L.Ed.2d 693 (1978). An appropriate order will be entered. . The state defendants contend that they are not necessary parties to this lawsuit. They are correct as to the § 5 claim. However, the plaintiffs have also sued the state defendants on various other federal claims, which are to be addressed by a single judge. We therefore leave up to" }, { "docid": "13886642", "title": "", "text": "preclearance. See Berry v. Doles, supra; Perkins v. Matthews, 400 U.S. 379, 396-97, 91 S.Ct. 431, 27 L.Ed.2d 476 (1970). Justice Powell has called for the need to bring a measure of common sense to the application of the Act. Berry v. Doles, 438 U.S. at 199, 98 S.Ct. at 2697, 57 L.Ed.2d at 701. Changes in election laws are submitted for approval to the Attorney General at the rate of over 1000 per year. Id. Even a cursory examination of Beer v. United States, 374 F.Supp. 357 (D.D.C.1974) shows that the majority’s hope for a quick disposition of the city's suit seeking approval of the plan is illusory. Beer, supra, was filed by council members of the City of New Orleans on July 25, 1973, and the court, having accelerated the case as far as possible, did not issue an opinion on the merits until May 15, 1974. The City of Dallas’ suit, which seeks approval of the election plan of the seventh largest city of the country, already has shown signs of becoming protracted litigation. Meanwhile, the voters of the city are disenfranchised and city government operates under a cloud, if it operates at all. I do not believe Congress intended this to be the normal result. The courts have endeavored when possible to fashion remedies under the Act that permit elections to go forward at the scheduled time. See, e. g., Pitts v. Carter, 380 F.Supp. 4, 8 (N.D.Ga.1974) (three-judge court directing single judge to devise plan for conduct of upcoming election). While the very plan before us was under consideration by the Supreme Court, the Court expressed that, pending the submission and clearance of a plan under the Act, “if a State’s electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement- their own plans.” Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 2498, 57 L.Ed.2d 411, 419 (1978). At the very least, this court should have devised a plan so that April 7 election could be held." }, { "docid": "10828307", "title": "", "text": "2001, the existing 1972 redistricting plan, or a plan to be drawn by the court only slightly modifying either one of the preceding two. II. All parties agree that under § 5 and decisional precedent, this court serves only a limited function in congressional redistricting cases. Our task becomes an “unwelcome obligation” to prescribe an interim plan which will be effective merely until a redistricting plan adopted by the state can lawfully be used in its place, i.e., until either the District of Columbia court renders declaratory judgment upholding S.B. 2001 or the Mississippi legislature enacts another redistricting plan which is precleared under § 5. Moreover, notwithstanding a suggestion in McDaniel v. Sanchez, 452 U.S. 130, 149, 101 S.Ct. 2224, 2236, 68 L.Ed.2d 724, 739 (1981), that a federal district court should fashion its own plan, this court lacks the time, ability, and record basis to independently create a plan which could be implemented with sufficient promptness to allow the orderly conduct of the 1982 congressional primary and general elections. These limitations thus require us to choose from among the several plans urged for adoption in these proceedings. Cf. Terrazas v. Clements, 537 F.Supp. 514, at 520-521 (N.D.Tex.1982) (three-judge court). Mississippi is precluded by the express terms of § 5 from implementing S.B. 2001 so long as it remains unprecleared. See Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Dotson v. City of Indianola, 521 F.Supp. 934 (N.D.Miss.1981) (three-judge court). Section 5, however, does not by its terms prohibit a federal district court from utilizing, on an interim basis, an unprecleared plan. Indeed, it would be a rare case in which a federal court, compelled to devise an interim redistricting plan, would have opportunity to place into effect a plan that had been precleared under § 5. Although circumstances might arise in which a federal court could order, on an interim basis, implementation of an unprecleared legislative plan, we conclude that any action by this court to so order" }, { "docid": "10987719", "title": "", "text": "practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made____ Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court. In any action under section 5, the role of a three-judge district court is a rather restricted one. The court may not determine whether a change has the purpose or effect of denying or abridging the right to vote on account of race or color. This task was expressly reserved by Congress for consideration by the District Court for the District of Columbia or the Attorney General. United States v. Board of Supervisors, 429 U.S. 642, 646, 97 S.Ct. 833, 835, 51 L.Ed.2d 106 (1977). Local district courts are “limited to the determination whether ‘a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny.' ” Perkins v. Matthews, 400 U.S. 379, 383, 91 S.Ct. 431, 434, 27 L.Ed.2d 476 (1971) (quoting Allen v. State Board of Elections, 393 U.S. at 561, 89 S.Ct. at 829); see also Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Bramwell v. Kings County Republican County Committee, — F.Supp.-No. 84-2847 slip op. (E.D. N.Y. May 2, 1986) (three-judge court) (per curiam). In the instant case the defendants have chosen not to dispute that the changes in polling places and the change in the number of days for filing objections are covered by § 5. Rather, defendants argue that the changes were subjected to the required" }, { "docid": "22597422", "title": "", "text": "aff’d, 477 U. S. 901 (1986), we issued a summary affirmance of a decision holding that §5 applied to judges. Nor did the District Court’s vague concerns about voter confusion and low voter turnout in a special election for the unprecleared seats justify its refusal to enjoin the illegal elections. Voters may be more confused and inclined to avoid the polls when an election is held in conceded violation of federal law. Finally, the District Court’s stated purpose to avoid possible challenges to criminal and civil judgments does not justify allowing the invalid elections to take place. To the contrary, this concern counsels in favor of enjoining the illegal elections, thus averting a federal challenge to state judgments. The three-judge District Court, 751F. Supp., at 595, maintained that its decision to give provisional effect to elections conducted in violation of § 5 “closely parallelled]” a number of our decisions, including Perkins v. Matthews, 400 U. S. 379 (1971), NAACP v. Hampton County Election Comm’n, 470 U. S. 166 (1985), Berry v. Doles, 438 U. S. 190 (1978), and Georgia v. United States, 411 U. S. 526 (1973). The cases are inapposite. Perkins stated that “[i]n certain circumstances ... it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming.” 400 U. S., at 396-397. But in Perkins, as in Hampton County, Berry, and Georgia, the elections in question had been held already; the only issue was whether to remove the elected individuals pending preclearance. Here the District Court did not face the ex post question whether to set aside illegal elections; rather, it faced the ex ante question whether to allow illegal elections to be held at all. On these premises, §5’s prohibition against implementation of unprecleared changes required the District Court to enjoin the election. This is especially true because, unlike the circumstance in Perkins, Hampton County, Berry, or Georgia, the Attorney General interposed objections before the election. We need not" }, { "docid": "22597421", "title": "", "text": "been on notice of the alleged § 5 violations since appellants filed their July 1987 amended complaint. When Louisiana asked the Attorney General for reconsideration of its original preclearance decision in June 1990, it became apparent that the State intended to hold elections for the unprecleared seats in the fall of the same year. Less than a month later, and more than two months before the scheduled October 6, 1990, election, appellants filed a motion to enjoin elections for the unprecleared seats. Appellants displayed no lack of diligence in challenging elections for the unprecleared seats, and every participant in the process knew for over three years that the challenged seats were unprecleared, in violation of §5. The other reasons for the District Court’s decision lack merit as well. The District Court maintained that the applicability of § 5 to judges was uncertain until our summary affirmance in Brooks v. Georgia State Bd. of Elections, 775 F. Supp. 1470, aff’d, 498 U. S. 916 (1990). But in Haith v. Martin, 618 F. Supp. 410 (EDNC 1985), aff’d, 477 U. S. 901 (1986), we issued a summary affirmance of a decision holding that §5 applied to judges. Nor did the District Court’s vague concerns about voter confusion and low voter turnout in a special election for the unprecleared seats justify its refusal to enjoin the illegal elections. Voters may be more confused and inclined to avoid the polls when an election is held in conceded violation of federal law. Finally, the District Court’s stated purpose to avoid possible challenges to criminal and civil judgments does not justify allowing the invalid elections to take place. To the contrary, this concern counsels in favor of enjoining the illegal elections, thus averting a federal challenge to state judgments. The three-judge District Court, 751F. Supp., at 595, maintained that its decision to give provisional effect to elections conducted in violation of § 5 “closely parallelled]” a number of our decisions, including Perkins v. Matthews, 400 U. S. 379 (1971), NAACP v. Hampton County Election Comm’n, 470 U. S. 166 (1985), Berry v. Doles, 438 U. S." }, { "docid": "1584641", "title": "", "text": "for the district court to afford local officials an opportunity to seek federal approval before ordering a new election. 500 U. S., at 654. But those cases raised an issue different from the one in Clark. In Perkins and Berry, the District Courts confronted the question whether to set aside illegal elections that had already taken place. By contrast, the District Court in Clark had to decide whether to allow illegal elections to go forward in the first place. In this situation, “§ 5’s prohibition against implementation of unprecleared changes required the District Court to enjoin the election.” 500 U. S., at 654. The District Court faced fundamentally the same problem here as in Clark. The County did not preclear the ordinances as required by § 5. For several years, the County had been on notice that its electoral changes were subject to §5’s preclearance requirements, yet it never obtained judicial or administrative preclearance of the consolidation ordinances. In Clark, we left open the question whether a district court may ever deny a §5 plaintiff’s motion for an injunction and allow a covered jurisdiction to conduct an election under an unprecleared voting plan. We suggested that “[a]n extreme circumstance might be present if a seat’s unprecleared status is not drawn to the attention of the [covered jurisdiction] until the eve of the election and there are equitable principles that justify allowing the election to pro ceed.” Id., at 654-655. We found no such exigency to exist in Clark, and we find none here. The State contends that there is a difference between a district court’s failing to enjoin an unprecleared election scheme — the situation in Clark — and its ordering, pursuant to its equitable remedial authority, an election under an unprecleared plan. Regardless whether this distinction is meaningful, it does not advance the argument that the County’s judicial elections may be held without § 5 preclearance. We have recognized, at least in cases raising claims under the Fourteenth Amendment, that §5 preclearance requirements may not apply where a district court independently crafts a remedial electoral plan. McDaniel v. Sanchez," }, { "docid": "22597420", "title": "", "text": "curiam). See also United States v. Board of Supervisors of Warren County, 429 U. S. 642, 645 (1977) (“No new voting practice or procedure may be enforced unless the State or political subdivision has succeeded in its declaratory judgment action or the Attorney General has declined to object”). Failure to obtain either judicial or administrative preclearance “renders the change unenforceable.” Hathorn v. Lovorn, 457 U. S. 255, 269 (1982). If voting changes sub ject to § 5 have not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting the State from implementing the changes. Allen v. State Bd. of Elections, 393 U. S. 544, 572 (1969). The District Court ignored these principles altogether. It presented a number of reasons for not enjoining the election, none of which we find persuasive. The court cited the short time between election day and the most recent request for injunction, the fact that qualifying and absentee voting had begun, and the time and expense of the candidates. But the parties, the District Court, and the candidates had been on notice of the alleged § 5 violations since appellants filed their July 1987 amended complaint. When Louisiana asked the Attorney General for reconsideration of its original preclearance decision in June 1990, it became apparent that the State intended to hold elections for the unprecleared seats in the fall of the same year. Less than a month later, and more than two months before the scheduled October 6, 1990, election, appellants filed a motion to enjoin elections for the unprecleared seats. Appellants displayed no lack of diligence in challenging elections for the unprecleared seats, and every participant in the process knew for over three years that the challenged seats were unprecleared, in violation of §5. The other reasons for the District Court’s decision lack merit as well. The District Court maintained that the applicability of § 5 to judges was uncertain until our summary affirmance in Brooks v. Georgia State Bd. of Elections, 775 F. Supp. 1470, aff’d, 498 U. S. 916 (1990). But in Haith v. Martin, 618 F. Supp. 410 (EDNC 1985)," }, { "docid": "1584640", "title": "", "text": "the propriety of a three-judge District Court’s refusal to enjoin elections under an unprecleared Louisiana judicial election plan. There, Louisiana had not submitted for preclearance a number of statutory and constitutional voting changes relating to elections of state judges, many of which were adopted in the late 1960’s and 1970’s. Id., at 649. The District Court nonetheless, permitted elections to go forward, with the winners allowed to take office if Louisiana filed a judicial preclearance action within 90 days. Id., at 651. We held that the District Court erred in authorizing these elections in the absence of preclearance, pointing out that although Louisiana had been aware for at least three years that the judgeships were not precleared, it had still failed to file for judicial preclearance. Id., at 655. We acknowledged in Clark that earlier decisions such as Perkins v. Matthews, 400 U. S. 379 (1971), and Berry v. Doles, 438 U. S. 190 (1978) (per curiam), held that where a covered jurisdiction had already conducted elections under an unprecleared plan, it might be appropriate for the district court to afford local officials an opportunity to seek federal approval before ordering a new election. 500 U. S., at 654. But those cases raised an issue different from the one in Clark. In Perkins and Berry, the District Courts confronted the question whether to set aside illegal elections that had already taken place. By contrast, the District Court in Clark had to decide whether to allow illegal elections to go forward in the first place. In this situation, “§ 5’s prohibition against implementation of unprecleared changes required the District Court to enjoin the election.” 500 U. S., at 654. The District Court faced fundamentally the same problem here as in Clark. The County did not preclear the ordinances as required by § 5. For several years, the County had been on notice that its electoral changes were subject to §5’s preclearance requirements, yet it never obtained judicial or administrative preclearance of the consolidation ordinances. In Clark, we left open the question whether a district court may ever deny a §5 plaintiff’s" }, { "docid": "15431830", "title": "", "text": "138, 101 S.Ct. 2224, 2230, 68 L.Ed.2d 724 (1981). Section 5 states, in pertinent part, that “[a]ny action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28” 28 U.S.C. § 2284(a) provides: A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body. Because this is not an action challenging either a congressional apportionment scheme or a state-wide apportionment scheme, it falls within § 2284(a), thus requiring a three-judge court, only if the action is one “under” Section 5. Furthermore, we should note that a three-judge court convened under Section 5 is a court of limited jurisdiction and limited authority. In United States v. Board of Supervisors, 429 U.S. 642, 645, 97 S.Ct. 833, 834, 51 L.Ed.2d 106 (1977), the Supreme Court held that “[ajttempts to enforce changes that have not been subjected to [section 5] scrutiny may be enjoined by any three-judge district court in a suit brought by a voter ... or by the Attorney General on behalf of the United States.” “Enforcement” only includes the determinations whether a voting change is covered by Section 5, whether the preclearance requirements have been met and, if they have not, what remedy is appropriate. Id. 2 The City contends that its counterclaim is not an “action under” Section 5 because it did not challenge the merits of the Attorney General’s objection to Plan 9-5-1 # 2, and did not seek to have the district court order Plan 9-5-1 # 2 to be used as the permanent plan for the 1990s. Each underlying point is correct. Because the City asked that the unprecleared Plan 9-5-1 # 2 be used' as an interim plan for the November 5 election, the City did not seek relief that necessarily would circumvent preclearance requirements. Instead, the City sought to alleviate the difficult situation it faced after the electorate had rejected the" }, { "docid": "4467481", "title": "", "text": "a proper fashion. 377 U.S. at 585-87, 84 S.Ct. at 1393-94 (emphasis added). Cf., Ely v. Klahr, 403 U.S. at 114-15, 91 S.Ct. at 1806-07 (district court’s use on a temporary basis of a constitutionally invalid plan upheld where one substitute presented to the court (which could “very likely [result in] a valid reapportionment plan”) could not be implemented to hold the imminent elections on time and other feasible substitute was also unconstitutional and was the greater of two evils). No judicial decision addresses the use of a partially unprecleared plan as a temporary, emergency court-ordered plan. The question of the use of unprecleared plans has arisen in the context of whether a legislative plan must initially be submitted for preclearance, e.g., McDaniel v. Sanchez, supra; Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 L.Ed.2d 693 (1978), not in the context of whether portions of a plan which have been submitted for preclearance and have been objected to can be temporarily utilized upon a district court’s finding that parts of the objected to plan are the most equitable under the circumstances. In Perkins v. Matthews, 400 U.S. at 396-97, 91 S.Ct. at 440-41, the Supreme Court refused to order new elections even though elections had been conducted under a plan that had not been precleared. The Court went on to explain: In certain circumstances, for example, it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming. Since the District Court is more familiar with the nuances of the local situation than are we, and has heard the evidence in this case, we think the question of the appropriate remedy is for that court to determine, in the first instance, after hearing the views of both parties. In Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), the Supreme Court permitted elections to take place under a statewide apportionment plan to which an objection had" }, { "docid": "10987720", "title": "", "text": "expressly reserved by Congress for consideration by the District Court for the District of Columbia or the Attorney General. United States v. Board of Supervisors, 429 U.S. 642, 646, 97 S.Ct. 833, 835, 51 L.Ed.2d 106 (1977). Local district courts are “limited to the determination whether ‘a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny.' ” Perkins v. Matthews, 400 U.S. 379, 383, 91 S.Ct. 431, 434, 27 L.Ed.2d 476 (1971) (quoting Allen v. State Board of Elections, 393 U.S. at 561, 89 S.Ct. at 829); see also Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Bramwell v. Kings County Republican County Committee, — F.Supp.-No. 84-2847 slip op. (E.D. N.Y. May 2, 1986) (three-judge court) (per curiam). In the instant case the defendants have chosen not to dispute that the changes in polling places and the change in the number of days for filing objections are covered by § 5. Rather, defendants argue that the changes were subjected to the required federal scrutiny or will receive sufficiently prompt scrutiny to satisfy the provisions of the Act. A. The Change in Polling Places According to the City all polling site changes in Bronx and Kings Counties were precleared in advance of the May 6 elections. Aff. of Betty Dolen at ¶ 2; Decía, of Jonathan Pines at ¶ 7. Due to circumstances beyond the City Board of Elections’ control some of the polling site changes in New York County were submitted to the Attorney General within too short a period of time to receive preclearance prior to the holding of elections, but preclearance was obtained shortly thereafter. Pines Decía, at 117. The Court was initially troubled by the seeming oxymoron of “retroactive preclearance.” Nevertheless, a review of the case law convinces us that this is indeed possible. In Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 L.Ed.2d 693 (1978), the Supreme Court reviewed a decision by a three-judge district court from the Middle District of Georgia. In that case, as in ours, the plaintiffs had" }, { "docid": "13886646", "title": "", "text": "“nuances of the local situation.” 400 U.S. at 396-97, 91 S.Ct. 431. The Court recently declined a like invitation in Berry v. Doles, supra. This case calls for even closer scrutiny of the circumstances than Perkins and Doles, because plaintiffs seek to deprive the voters of the city of the right to vote for representatives in city government for an indefinite time. In Perkins and Doles, voters had exercised their right to vote and the burden of a new election under a court ordered plan would fall upon the city government and the candidates rather than upon the voters. Since the Act is ultimately concerned with protection of the right to vote, a court should be even more cautious when asked to postpone indefinitely an election than when asked to order a new election. I recognize that in Holt v. Richmond, 406 U.S. 903, 92 S.Ct. 1602, 31 L.Ed.2d 814 (1972), three justices of the Supreme Court granted an application to enjoin upcoming city elections under an unapproved plan, even though the incumbents had been illegally elected under the plan. The justices, however, did not consider the discussion of an appropriate remedy in Perkins, supra. Furthermore, a federal district court for the District of Columbia, in denying approval of the plan, remarked that the illegally elected incumbents had continued in office for four years because city elections had been enjoined until that court’s decision, and that, therefore, the incumbents had evaded the intended “freezing effect” of § 5 of the Act. City of Richmond, Va., supra, 376 F.Supp. at 1358. Finally, the full Court later affirmed Hale County, which cannot be read consistently with Holt, supra. The Supreme Court has not delineated the circumstances which are important in fashioning a remedy under the Act. Since the majority has chosen to rely upon the presumption that an election under an unapproved plan should be enjoined rather than to examine the circumstances of this casé, I now undertake to determine what circumstances a court should take into account in fashioning a remedy under the Act. I begin with the proposition that a" }, { "docid": "22597423", "title": "", "text": "190 (1978), and Georgia v. United States, 411 U. S. 526 (1973). The cases are inapposite. Perkins stated that “[i]n certain circumstances ... it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming.” 400 U. S., at 396-397. But in Perkins, as in Hampton County, Berry, and Georgia, the elections in question had been held already; the only issue was whether to remove the elected individuals pending preclearance. Here the District Court did not face the ex post question whether to set aside illegal elections; rather, it faced the ex ante question whether to allow illegal elections to be held at all. On these premises, §5’s prohibition against implementation of unprecleared changes required the District Court to enjoin the election. This is especially true because, unlike the circumstance in Perkins, Hampton County, Berry, or Georgia, the Attorney General interposed objections before the election. We need not decide today whether there are cases in which a district court may deny a § 5 plaintiff’s motion for injunction and allow an election for an unprecleared seat to go forward. An extreme circumstance might be present if a seat’s unprecleared status is not drawn to the attention of the State until the eve of the election and there are equitable principles that justify allowing the election to proceed. No such exigency exists here. The State of Louisiana failed to preclear these judgeships as required by § 5. It received official notice of the defect in July 1987, and yet three years later it had still failed to file for judicial preclearance, the “basic mechanism” for preclearance, United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 136 (1978). It scheduled elections for the unprecleared seats in the fall of 1990 even after the Attorney General had interposed objections under §5. In short, by the fall 1990 election, Louisiana had with consistency ignored the mandate of § 5. The District Court should have enjoined" }, { "docid": "13886641", "title": "", "text": "day of February of an even-numbered year the vacancy shall be filled by a majority vote of the remaining members of the council. City Charter of the City of Dallas, Chapter HI, § 5. In sum, the city has a constitutional election plan under which council members were lawfully elected in 1975. In 1977, council members were elected under the plain in violation of § 5 .of the- Act, and in 1979, the city seeks again to hold an election under the plan. The majority attempts to read into the Act a strong preference where the courts have failed to read a mandate that no election should be held if an approved election may not be held. While the Act has been said to impose “restrictions unique in the history of our country,” Berry v. Doles, supra, 438 U.S. at 200, 98 S.Ct. at 2698, 57 L.Ed.2d at 701 (Powell, J. concurring) it has not been interpreted to require the frustration of the electoral processes in all circumstances where an election plan has not obtained preclearance. See Berry v. Doles, supra; Perkins v. Matthews, 400 U.S. 379, 396-97, 91 S.Ct. 431, 27 L.Ed.2d 476 (1970). Justice Powell has called for the need to bring a measure of common sense to the application of the Act. Berry v. Doles, 438 U.S. at 199, 98 S.Ct. at 2697, 57 L.Ed.2d at 701. Changes in election laws are submitted for approval to the Attorney General at the rate of over 1000 per year. Id. Even a cursory examination of Beer v. United States, 374 F.Supp. 357 (D.D.C.1974) shows that the majority’s hope for a quick disposition of the city's suit seeking approval of the plan is illusory. Beer, supra, was filed by council members of the City of New Orleans on July 25, 1973, and the court, having accelerated the case as far as possible, did not issue an opinion on the merits until May 15, 1974. The City of Dallas’ suit, which seeks approval of the election plan of the seventh largest city of the country, already has shown signs of becoming" }, { "docid": "1584639", "title": "", "text": "5; and that the consolidation ordinances did not alter a voting “standard, practice, or procedure” subject to §5 preclearance. We express no view on these claims, leaving it to the District Court to decide them in the first instance. B A jurisdiction subject to §5’s requirements must obtain either judicial or administrative preclearance before implementing a voting change. No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance. Clark v. Roemer, 500 U. S., at 652-653; McDaniel v. Sanchez, 452 U. S. 130, 137 (1981); Connor v. Waller, 421 U. S. 656 (1975) (per curiam). If a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change. Clark v. Roemer, supra, at 652-653 (citing Allen v. State Bd. of Elections, 393 U. S. 544, 572 (1969)). The District Court’s order that the County conduct elections under the unprecleared, at-large judicial election plan conflicts with these principles and with our decision in Clark v. Roemer, supra. Clark concerned the propriety of a three-judge District Court’s refusal to enjoin elections under an unprecleared Louisiana judicial election plan. There, Louisiana had not submitted for preclearance a number of statutory and constitutional voting changes relating to elections of state judges, many of which were adopted in the late 1960’s and 1970’s. Id., at 649. The District Court nonetheless, permitted elections to go forward, with the winners allowed to take office if Louisiana filed a judicial preclearance action within 90 days. Id., at 651. We held that the District Court erred in authorizing these elections in the absence of preclearance, pointing out that although Louisiana had been aware for at least three years that the judgeships were not precleared, it had still failed to file for judicial preclearance. Id., at 655. We acknowledged in Clark that earlier decisions such as Perkins v. Matthews, 400 U. S. 379 (1971), and Berry v. Doles, 438 U. S. 190 (1978) (per curiam), held that where a covered jurisdiction had already conducted elections under an unprecleared plan, it might be appropriate" } ]

[ { "docid": "23507191", "title": "", "text": "health regulations have protected Christian Scientists in the exercise of their religion. See Schneider, Christian Science and the Law: Room for Compromise?, 1 Colum.J.Law & Soc. Pkob. 81 (1965). . The Ballards made claims to miraculous healing powers and collected money on the basis of these claims. The truth or falsity of their claims was held not ? subject to evaluation in a prosecution for mail fraud. They marketed no “device” in connection with their claims, but it is difficult confidently to conclude that had they, and had their practices been attacked under food and drug laws rather than the mail fraud statute, the truth of their claims would have been any more a fit subject for litigation. . See text accompanying Notes 21-26, supra. . See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957). . Cf. United States v. Ballard, 322 U.S. 78, 92, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (dissenting opinion of Mr. Justice Jackson). . Washington Ethical Society v. District of Columbia, supra Note 45; and see particularly, for perhaps the fullest discussion of the meaning of religion for tax exemption purposes, Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394 (1957). . United States v. Seeger, supra Note 45; United States v. Kauten, 2 Cir., 133 F.2d 703 (1943). . People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964); In re Grady, 61 Cal.2d 887, 39 Cal.Rptr. 912, 394 P.2d 728 (1964). . For thoughtful efforts at “defining” religion in the context of litigation, see United States v. Seeger, supra Note 45 (with concurring opinion of Mr. Justice Douglas, 380 U.S. at 188, 85 S.Ct. 850), and Fellowship of Humanity v. County of Alameda, supra Note 47. Further on the question see Comment, Defining Religion: Of God, the Constitution and the D.A.R., 32 U.Ciii.L.Rev. 533 (1965) ; Boyan, Defining Religion in Operational and Institutional Terms, 116 U.Pa.L.Rev. 479 (1968). For recognition that the tona fides of religious" } ]

[ { "docid": "23277919", "title": "", "text": "similar treatment to a less established religion. Although we agree that the Free Exercise Clause protects all religions, old and new, alike once its protection attaches, in determining whether that protection applies courts may require a newer faith to demonstrate that it is, in fact, entitled to protection as a religion. See, e.g., International Society for Krishna Consciousness, Inc. v. Barber, supra at 433; Theriault v. Carlson, 5 Cir. 1974, 495 F.2d 390, cert. den. 1974, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279; United States v. Kuch, D.D.C.1968, 288 F.Supp. 439. “Not every enterprise cloaking itself in the name of religion can claim the constitutional protection conferred by that status.” Founding Church of Scientology v. United States, 1969, 133 U.S.App.D.C. 229, 409 F.2d at 1160. In such cases, the bare assertion of a religious nature has not been sufficient to establish First Amendment protection and neither is it here. A motion to dismiss, as a vehicle for determining whether defendant’s statements are entitled to the protection of the First Amendment, presents this court with an intractable dilemma. Scientology is not an established religion whose tenets, doctrines, and policies are generally known. The court may not, therefore, by judicial notice identify it as a religion. To take all of plaintiff’s allegations as true could strip defendant of all First Amendment protection without any factual showing by plaintiff. To treat Scientology as a religion entitled to the full panoply of First Amendment rights would be to ignore the allegations of the complaint. Ascertaining defendant’s status — whether religious or secular — requires reference to extrinsic materials. We therefore conclude that the question whether Counts IV, VII, VIII and IX state a claim upon which relief can be granted cannot be resolved on a motion to dismiss. Therefore, as to those counts we shall treat defendant’s motion to dismiss as a motion for summary judgment and direct the parties to submit materials regarding whether defendant is entitled to protection as a religion under the First Amendment. In making that determination, the Founding Church criteria will provide a useful starting point. See" }, { "docid": "16687250", "title": "", "text": "from the motives of its organizers and leaders, the organization itself possesses no indicia of a religious group or order. The DULC has no rites of membership, no requirement of active participation, no regular religious meetings, no system of providing guidance to its members, no regular contact between members and leaders, and no indication that it provides any religious services, i.e., marriages, burials, or community and humanitarian aid. Cf. Washington Ethical Society v. District of Columbia, 249 F.2d 127, 128 (D.C.Cir.1957). Significantly, anyone with the money can “buy” into the church and obtain any desired ecclesiastical title (including bishop, priest, archbishop, friar, reverend, or rabbi) by doing no more than filling out an application and then writing out a check. In essence, the DULC appears to exist for only two purposes: to provide a tax dodge for its leaders, see generally Pollard v. C.I.R., 786 F.2d 1063, 1064-65 (11th Cir.1986), and to give “religious” legitimacy to the chiropractic ethics of its members. This is not enough. While it has sometimes been difficult for us to establish precise standards by which the bona fides of a religion may be judged, these difficulties have not hindered us in denying protected status to organizations which are “obviously shams and absurdities” and whose leaders “are patently devoid of religious sincerity.” Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 (1974); see Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir.1985); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir.1981); United States v. Carroll, 567 F.2d 955, 957 (10th Cir.1977); United States v. Kuch, 288 F.Supp. 439, 443-44 (D.D.C.1968). The ULC, and more specifically for purposes of this case, the DULC is such an organization; accordingly, the district court correctly refused to exempt plaintiffs from the requirements of § 2164 because plaintiffs had not shown they were “bona fide members of a recognized religious organization whose teachings are contrary to [immunization].” N.Y.Pub. Health Law § 2164(9) (McKinney 1985) (emphasis added). B. Plaintiffs’ Standing to Challenge § 2164. Having upheld the district court’s finding that" }, { "docid": "19815210", "title": "", "text": "Laird, 136 U.S.App.D.C. 388, 420 F.2d 230, 238-39 (1969); Wentworth v. Schlesinger, 160 U.S.App.D.C. 172, 490 F.2d 740 (1973). Cal.Pen.Code §§ 286, 288a. “The only appropriate and relevant inquiry is whether or not [the Church and its ministry are] a religion and whether the [inmates] possess a sincere and good faith belief in that creed. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); United States v. Seeger, supra [380 U.S. 163, 177, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)].” Remmers v. Brewer, 361 F.Supp. 537, 542 (S.D.Iowa 1973). See Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). We find from the undisputed record evidence that the Church and its ministry do not teach or promote homosexuality manifestations or any sexuality among its some 15,000 members, except to acknowledge the fact of homosexual sexual orientation among humans and their need for spiritual ministry, and further that the record is devoid of any evidence tending to show that the inmates’ expressed beliefs in and desires for the ministry of the Church are not sincere and genuinely felt. We believe that the Church’s ministry and work and the religion espoused by the Church and its ministry possess the cardinal characteristics associated with traditional “recognized” religions in that it teaches and preaches a belief in a Supreme Being, a religious discipline and tenets to guide one’s daily existence. Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957), cited in United States v. Kuch, 288 F.Supp. 439, 444 (D.D.C.1968); Remmers, supra, at 540-41. We conclude from the affidavits and record herein that there is no genuine issue as to any material fact or the freedom of belief issue. Accordingly the plaintiffs are entitled as a matter of law to partial declaratory relief to the effect that the Church and its ministry espouses and teaches a bona fide religion aligned with the Christian beliefs and faith and is entitled to the protection of the establishment clause; and the Church, its members and the inmates have standing to contest the" }, { "docid": "9826832", "title": "", "text": "question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas, 450 U.S. at 714, 101 S.Ct. 1425. The ADC cites Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3rd Cir.1981), as defining three “useful indicia” of a religion for the purposes of First Amendment jurisprudence: First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in na-’ ture; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs. 662 F.2d 1025, 1032. Using these indicia as a benchmark, the ADC asserts that Love’s belief system does not constitute a religion. First, we note that, while the Third Circuit emphasized the importance of setting some objective guidelines, they also conceded that they did not intend to articulate a rigid “test” for defining a religion and that “ ‘[flexibility and careful consideration of each belief system are needed.’ ” Africa, 662 F.2d at 1032 n. 13 (quoting Malnak v. Yogi, 592 F.2d 197, 207-210 (3rd Cir.1979) (concurring opinion)). Yet even applying the Africa standards as a “test,” we find that Love’s belief system is a religion. With respect to the first two prongs of this analysis, Love’s belief system is derived from his own study of a text which is central to two of the world’s major religions: Christianity and Judaism. When asked to articulate the tenets of his belief system, Love confined his testimony to those tenets which affected this lawsuit; he was asked only about those beliefs that had some bearing on the lawsuit. J.A. at 47-48. However, he has clearly indicated that his religion is premised upon a fundamentalist approach to the Old Testament. To suggest that the Old Testament of the Bible, standing alone as a religious text, fails to address \"fundamental and ultimate questions having to do with deep and imponderable matters,\"" }, { "docid": "23277920", "title": "", "text": "with an intractable dilemma. Scientology is not an established religion whose tenets, doctrines, and policies are generally known. The court may not, therefore, by judicial notice identify it as a religion. To take all of plaintiff’s allegations as true could strip defendant of all First Amendment protection without any factual showing by plaintiff. To treat Scientology as a religion entitled to the full panoply of First Amendment rights would be to ignore the allegations of the complaint. Ascertaining defendant’s status — whether religious or secular — requires reference to extrinsic materials. We therefore conclude that the question whether Counts IV, VII, VIII and IX state a claim upon which relief can be granted cannot be resolved on a motion to dismiss. Therefore, as to those counts we shall treat defendant’s motion to dismiss as a motion for summary judgment and direct the parties to submit materials regarding whether defendant is entitled to protection as a religion under the First Amendment. In making that determination, the Founding Church criteria will provide a useful starting point. See 409 F.2d at 1160. We note, too, the similar guidelines Judge Adams enunciated in his concurring opinion in Malnak v. Yogi, 3 Cir. 1979, 592 F.2d 197, 208-209; whether the candidate religion addresses matters of ultimate concern, whether its doctrine and practices are comprehensive, and whether it includes certain formal, external characteristics of religious organizations. Most recently, Judge Kaufman, writing for the Second Circuit, has used comparable criteria. International Society for Krishna Consciousness, Inc. v. Barber, supra at 440-41. Presentation of proof sufficient to make a prima facie case would entitle defendant to the protections of the First Amendment free exercise clause unless plaintiff effectively rebuts that case. The Supreme Court’s recent decision in Thomas v. Review Board, supra, makes clear, however, that certain types of inquiry are impermissible in determining whether the First Amendment protects a particular belief as religious. First, courts may not inquire into the truth or falsity of a belief in question. Whether a belief is religious “is not to turn upon a judicial perception of the particular belief or practice" }, { "docid": "5041754", "title": "", "text": "Cal.App.2d 673, 315 P.2d 394, 401 (1957); Van Alstyne, First Amendment at 1101 n. 1. . Professor Tribe argues that courts cannot properly rely on these types of \"externalities” because they “unduly constrain the concept of religion.\" American Constitutional Law at 1181-82. Using the “inclusion” approach, precisely the opposite is true; the Court may find that a new, unique, or unfamiliar set of beliefs is “religious” because the beliefs exhibit some of the vast array of “externalities” that are the hallmarks of most other religions. . The Court has gleaned many of these factors from the following cases: Africa, 662 F.2d at 1025; Malnak, 592 F.2d at 197; United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir.1983); Founding Church of Scientology, 409 F.2d at 1146; Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (D.C.Cir.1957); Kauten, 133 F.2d at 703; Sherr, 672 F.Supp. at 81; Jacques, 569 F.Supp. at 730; Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982); Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb.1979), aff'd, 636 F.2d 206 (8th Cir.1980); Stevens, 428 F.Supp. at 896; Remmers, 361 F.Supp. at 537; Kuch, 288 F.Supp. at 439; Fellowship of Humanity, 315 P.2d at 394. . Unfortunately, another factor that the Court could have included in the list is \"Dogmatism and Intolerance.” One need not be exceptionally familiar with the course of human history to realize that religious intolerance has been and continues to be the cause of countless deaths, many wars, and endless suffering. .This Court is aware of the Second and Third Circuit split on the issue of whether “religion” can have a different meaning depending on which religion clause of the First Amendment is at issue. Compare Malnak, 592 F.2d at 210, with United States v. Allen, 760 F.2d 447, 450 (2d Cir.1985). Because this case concerns the free exercise clause and not the establishment clause, the Court need not decide the issue. The Court notes, however, that while the Second Circuit (and Professor Tribe) make appealing policy arguments in favor of a dual definition, the Third Circuit correctly observes" }, { "docid": "18815066", "title": "", "text": "it qualifies for the exemption. First Libertarian Church v. Commissioner, ¶ 74.27 P-H TC 216, 220 (1980); Parker v. C.I.R., 365 F.2d 792, 799 (8th Cir. 1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 752, 17 L.Ed.2d 674 (1967). Tax exemptions are a matter of legislative grace, and thus, plaintiff must establish that it is entitled to exemption. Dickinson v. U.S., 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). In determining whether the plaintiff is entitled to an exemption, the Court must avoid any judgments concerning the truth or validity of the plaintiff’s religious beliefs. In Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975), the United States Court of Appeals for the Eighth Circuit emphasized the first amendment’s ban on such inquiries: “It is not the province of government officials or court to determine religious orthodoxy.” 522 F.2d at 360 (citations omitted). See also U.S. v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965) (“while the ‘truth’ of a belief is not open to question, there remains the significant question whether [the belief] is ‘truly held.’ ”). Even if the Court determines that the plaintiff organization and its adherents are sincere in their beliefs, they must still establish that their beliefs are religious in nature. The definitions of the words “religion” and “religious” are by no means free of ambiguity. See Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C.Cir.1957). See also Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (definition of religion in first amendment cases). The United States Supreme Court has not established a clear standard for determining which beliefs are religious. The Supreme Court has, however, distinguished between personal secular philosophy and religious beliefs. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) (distinguishing between the religious belief of the Amish and personal philosophy of Thoreau). In Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir.), cert. denied, - U.S. -, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982), the court set forth a three-part test for" }, { "docid": "6403810", "title": "", "text": "them “... to be declarants of religious orthodoxy.... ” even for aliens. Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3rd Cir. 1981). The Court concludes that when Congress permitted an alien’s status to turn upon religious considerations it intended that the INS do no more than to determine if the religion in question is bona fide. A more invidious use of the government’s power over aliens should require more explicit legislative direction. The task of distinguishing a religion from something else (e.g., a delusion, a personal credo, or a fraud) is a recurring and perplexing problem, and the outer limits of what is “religious” may be ultimately unascertainable. See Africa v. Commonwealth of Pennsylvania, supra; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 438-441 (2d Cir. 1981); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C.Cir.), cert, denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957); Theriault v. Silber, 453 F.Supp. 254 (W.D. Tex.1978). It is unnecessary to search for those limits in Nikkuni’s case, however, because upon the administrative record the Unification Church, by any historical analogy, philosophical analysis, or judicial precedent (indeed, by INS’ own criteria) must be regarded as a bona fide religion. The Court has similar misgivings about INS’ statutory authority to prescribe a particular quantum of faith and the manner in which it must be evinced to satisfy the service that an alien believer is entitled status adjustment even as a matter of grace. More portentous consequences for a U.S. citizen depend merely upon whether his beliefs are “sincerely held and ... in his own scheme of things, religious.” United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965). See Welsh v. United States, 398 U.S. 333, 356, 90 S.Ct. 1792, 1804, 26 L.Ed.2d 308 (1970). The INS candidly acknowledges its skepticism of the intentions of Misono and Vanalderwert" }, { "docid": "6403811", "title": "", "text": "v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957); Theriault v. Silber, 453 F.Supp. 254 (W.D. Tex.1978). It is unnecessary to search for those limits in Nikkuni’s case, however, because upon the administrative record the Unification Church, by any historical analogy, philosophical analysis, or judicial precedent (indeed, by INS’ own criteria) must be regarded as a bona fide religion. The Court has similar misgivings about INS’ statutory authority to prescribe a particular quantum of faith and the manner in which it must be evinced to satisfy the service that an alien believer is entitled status adjustment even as a matter of grace. More portentous consequences for a U.S. citizen depend merely upon whether his beliefs are “sincerely held and ... in his own scheme of things, religious.” United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965). See Welsh v. United States, 398 U.S. 333, 356, 90 S.Ct. 1792, 1804, 26 L.Ed.2d 308 (1970). The INS candidly acknowledges its skepticism of the intentions of Misono and Vanalderwert and points out that nothing would prevent their forsaking their calling immediately (if they have not already done so) to vie with U.S. workers for coveted employment once their petitions are granted. But the Misono and Yanalderwert records are devoid of any evidence whatsoever from which to find or infer that they are not the most devout of people who will continue to serve the Unification Church, as they have since 1973, for an annual remuneration of about $1,800, posing little threat to aspiring U.S. laborers. INS’ suspicions cannot substitute for the substantial evidence required to support findings of fact upon which an exercise of administrative discretion must rest, even when applied to aliens. For the foregoing reasons it is, this 16th day of September, 1982, ORDERED, that plaintiffs’ motion for summary judgment is granted and defendant’s motion for summary judgment is denied, and judgment shall be entered accordingly. . According to the administrative record Vanalderwert’s correct surname is “Vanalderwelt.” (A fifth plaintiff, Fumi Asumi (also known as “Azami”), reportedly died March 2, 1982, with" }, { "docid": "23277921", "title": "", "text": "409 F.2d at 1160. We note, too, the similar guidelines Judge Adams enunciated in his concurring opinion in Malnak v. Yogi, 3 Cir. 1979, 592 F.2d 197, 208-209; whether the candidate religion addresses matters of ultimate concern, whether its doctrine and practices are comprehensive, and whether it includes certain formal, external characteristics of religious organizations. Most recently, Judge Kaufman, writing for the Second Circuit, has used comparable criteria. International Society for Krishna Consciousness, Inc. v. Barber, supra at 440-41. Presentation of proof sufficient to make a prima facie case would entitle defendant to the protections of the First Amendment free exercise clause unless plaintiff effectively rebuts that case. The Supreme Court’s recent decision in Thomas v. Review Board, supra, makes clear, however, that certain types of inquiry are impermissible in determining whether the First Amendment protects a particular belief as religious. First, courts may not inquire into the truth or falsity of a belief in question. Whether a belief is religious “is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” 450 U.S. at 714, 101 S.Ct. at 1430. Moreover, Thomas suggests the difficulty of challenging the good faith of an entire organization and states that courts may not ordinarily consider intrafaith differences among adherents in determining whether a religious belief is sincerely held. Although there may be ways in which a party could rebut a prima facie showing by proving that “forms of religious organizations were created for the sole purpose of cloaking a secular enterprise with the legal protection of a religion,” Founding Church of Scientology of Washington, D. C. v. United States, supra at 1162, a general inquiry into whether individual members of a religion hold in good faith the belief they assert is not one of them. Rather, testing sincerity of religious belief involves a somewhat truncated inquiry which must focus on extrinsic evidence. See, e.g., International Society for Krishna Consciousness, Inc. v. Barber, supra at 441-42. ORDERS In accordance with" }, { "docid": "1721115", "title": "", "text": "all counts on which imprisonment has been imposed. Here, the district court found that Meyers had a history of failing to appear and that he posed a significant flight risk. We conclude that the district court’s findings are amply supported by the record and that Meyers has failed to establish that he has satisfied the criteria required for release stated in § 3143(b). Therefore, the district court’s denial of bail pending appeal is affirmed. AFFIRMED. . The district court denied Meyers’ motion before trial at the hearing on October 2, 1995. (ROA, Vol. III at 68-70). However, the district court's written Order was filed on November 14, 1995. United States v. Meyers, 906 F.Supp. 1494 (D. Wyo.1995) . The district court \"gleaned” many of these factors from the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 (3rd Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); Malnak v. Yogi, 592 F.2d 197 (3rd Cir.1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984); Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C.Cir.1957); United States v. Kauten, 133 F.2d 703 (2nd Cir.1943); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F.Supp. 81 (E.D.N.Y.1987); Jacques v. Hilton, 569 F.Supp. 730 (D.NJ.1983), aff'd, 738 F.2d 422 (3rd Cir.1984); Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982); Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb.1979), aff'd, 636 F.2d 206 (8th Cir.1980), vacated, 452 U.S. 911, 101 S.Ct. 3043, 69 L.Ed.2d 414 (1981); Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y.1977); Remmers v. Brewer, 361 F.Supp. 537 (S.D.Iowa 1973), aff'd, 494 F.2d 1277, cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Fellowship of Humanity v. Alameda County, 153 Cal.App.2d 673, 315 P.2d 394 (1957). . The government asserts that Meyers" }, { "docid": "23475394", "title": "", "text": "Harv.L.Rev. 1381, 1417-18 (1967); Comment, The Religious Rights of the Incarcerated, supra note 6, at 861 n.306 (sincerity inquiry is “especially important in prison free exercise cases because the bleakness of institutional life may create an incentive falsely to allege religious motivation for acts” otherwise forbidden by prison authorities). . There is nothing in the record to indicate that Africa has merely “adopt[ed] religious nomenclature and cynically use[d] it as a shield to protect [himself] when participating in antisocial conduct that otherwise stands condemned,” United States v. Kuch, 288 F.Supp. 439, 443 (D.D.C.1968), or that MOVE is “a masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful and/or reasonably disallowed by the various prison authorities but for the attempts which have been and are being made to classify them as ‘religious.’ ” Ther-iault v. Silber, 453 F.Supp. 254, 260 (W.D.Tex. 1978). . See Malnak v. Yogi, 592 F.2d 197, 200-07 (3d Cir. 1979) (Adams, J., concurring); Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056, 1057-66 (1978). . See Malnak v. Yogi, 592 F.2d 197, 207 (3d Cir. 1979) (Adams, J., concurring) (“beliefs holding the same important position for members of one of the new religions as the traditional faith holds for more orthodox believers are entitled to the same treatment as the traditional beliefs”); Founding Church of Scientology v. United States, 409 F.2d 1146, 1160 (D.C. Cir. 1969); Alim v. Byrne, 521 F.Supp. 1039 (D.N.J.1980); Womens Services, P. C. v. Thone, 483 F.Supp. 1022, 1034 (D.Neb.1979); Rem-mers v. Brewer, 361 F.Supp. 537, 540 (S.D.Iowa 1973). A number of commentators also have recommended a non-theistic definition of religion. See L. Tribe, American Constitutional Law § 14-6 (1978) (proposing “arguably religious” test for use in free exercise clause cases); Boyan, Defining Religion in Operational and Institutional Terms, 116 U.Pa.L.Rev. 479 (1968); Marcus, The Forum of Conscience: Applying Standards Under the Free Exercise Clause, 1973 Duke.L.J. 1217, 1245; Merel, The Protection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U.Chi.L.Rev. 805, 831 (1978) (“the meaning of ‘religion’ [may be] minimally objectified" }, { "docid": "23277918", "title": "", "text": "legal protections of religion. 409 F.2d at 1162. The determination in Founding Church that Scientology had made a prima facie case for religious status is obviously relevant to, but not conclusive for, our purposes. As Judge Wright pointed out, the government did not contest the issue. Moreover, the determination was made 12 years ago; at the least defendants would have to satisfy this court that the factors Judge Wright found persuasive still exist. Although plaintiff appeared to concede in oral argument that Scientology had made a prima facie case for First Amendment protection, she withdrew that concession in her post-argument brief. Scientology thus might be entitled to protection as a religion, but that entitlement is not clear. If this case involved an established religion, the court could, of course, accord it treatment as such without further inquiry. Defendants have contended, in oral argument and brief, that the court “may not favor one religion over another” by taking judicial notice of the fact that an established religion is a bona fide religion while refusing to give similar treatment to a less established religion. Although we agree that the Free Exercise Clause protects all religions, old and new, alike once its protection attaches, in determining whether that protection applies courts may require a newer faith to demonstrate that it is, in fact, entitled to protection as a religion. See, e.g., International Society for Krishna Consciousness, Inc. v. Barber, supra at 433; Theriault v. Carlson, 5 Cir. 1974, 495 F.2d 390, cert. den. 1974, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279; United States v. Kuch, D.D.C.1968, 288 F.Supp. 439. “Not every enterprise cloaking itself in the name of religion can claim the constitutional protection conferred by that status.” Founding Church of Scientology v. United States, 1969, 133 U.S.App.D.C. 229, 409 F.2d at 1160. In such cases, the bare assertion of a religious nature has not been sufficient to establish First Amendment protection and neither is it here. A motion to dismiss, as a vehicle for determining whether defendant’s statements are entitled to the protection of the First Amendment, presents this court" }, { "docid": "7349555", "title": "", "text": "which human beings may perceive of the universe and their place in it may make the task virtually impossible. Scholars have been deeply perplexed by the problems engendered by the necessity of delineating what constitutes the “religion” which the First Amendment protects, see, e.g., Choper, Defining “Religion” in the First Amendment, 1982 U.Ill.L.Rev. 579; Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056 (1978), and courts have struggled to formulate workable definitions. The Supreme Court, for example, has held that a religion need not necessarily be founded upon a belief in the fundamental premise of a “God” as commonly understood in Western theology, Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), and has written that “the test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” United States v. Seeger, 380 U.S. 163, 165-66, 85 S.Ct. 850, 854, 13 L.Ed.2d 733 (1965). The Supreme Court and Second Circuit have each declared religion to involve the “ultimate concerns” of individuals, see id., 380 U.S. at 187, 85 S.Ct. at 865; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440-41 (2d Cir.1981), and the Second Circuit has stated that one touchstone of a religion is present where a believer will categorically disregard elementary self-interest rather than transgressing religious tenets, United States v. Allen, 760 F.2d 447, 450 (2d Cir.1985) (citing Barber, 650 F.2d at 440, and United States v. Kauten, 133 F.2d 703, 708 (2d Cir.1943)). See also, e.g., Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y.1977). Whatever definition of religion courts should use in adjudicating controversies calling into question governmental actions in the name of liberty of religious belief and practice, there can be little doubt that the beliefs that plaintiffs have espoused in their pleadings, affidavits, and courtroom testimony qualify as" }, { "docid": "23277916", "title": "", "text": "belief in a deity, see Davis v. Beason, 1890, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637, they have long since abandoned so restrictive a definition. In Torcaso v. Watkins, 1961, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, the Court held that “religion” as used in the First Amendment applied to nontheistic faiths, too, and explicitly recognized as religions Buddhism, Taoism, Ethical Culture and Secular Humanism, 367 U.S. at 495 n. 11, 81 S.Ct. at 1684 n. 11. More recently, the Second Circuit held that Krishna Consciousness is a religion for free exercise purposes. International Society for Krishna Consciousness, Inc. v. Barber, 2 Cir. 1981, 650 F.2d 430, 440. Torcaso and International Society show that the concept of religion is more capacious than early cases suggested, but they do not, of course, resolve whether the representations at issue here should receive the protection the First Amendment confers. In evaluating defendant’s claim to First Amendment protection, we begin with prior litigation involving the Scientology movement. In Founding Church of Scientology of Washington, D.C. v. United States, 1969, 133 U.S.App.D.C. 229, 409 F.2d 1146, Judge Wright found that Scientology had established a prima facie case that it was a religion, 409 F.2d at 1160. This finding was based upon evidence that the church maintained the formal, external appearance of a religion — it was incorporated as a religion; maintained ministers with the authority to marry and bury; and its writings were found to contain a general account of man and his nature. Significantly, however, in the Founding Church litigation, there was no attempt to contest the bona fides of the Church’s religious status. Thus, Judge Wright carefully limited his holding, stating: We do not hold that the Founding Church is for all purposes a religion. Any prima facie case made out for religious status is subject to contradiction by a showing that the beliefs asserted to be religious are not held in good faith by those asserting them, and that forms of religious organization were erected for the sole purpose of cloaking a secular enterprise with the" }, { "docid": "6403809", "title": "", "text": "may to the same extent anathematize one faith or establish another for the same purpose. The INS acknowledges, however, that in enforcing rules respecting the admission of aliens to this country it is exercising the sovereign’s delegated power to accomplish the sovereign’s purpose, and in this case the “exclusive and unequivocal purpose [of 8 U.S.C., Sections 1182(a)(14) and 1153(a)(6) ] ... is to protect workers in the United States ... from job competition or adverse effects on their wages or working conditions.” (Defendant’s Memorandum, p. 9). It is difficult to find in that legislative purpose any authority for the INS to establish “criteria” by which religions may be qualitatively appraised, particularly in light of the deference the Establishment and Free Exercise Clauses must be accorded when no issue of alienage is involved. See Larson v. Valente, - U.S. -, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). INS officials, no more than judges, are equipped to be “... oracles of theological verity ...,” and it is unlikely that either Congress or the Founders ever intended for them “... to be declarants of religious orthodoxy.... ” even for aliens. Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3rd Cir. 1981). The Court concludes that when Congress permitted an alien’s status to turn upon religious considerations it intended that the INS do no more than to determine if the religion in question is bona fide. A more invidious use of the government’s power over aliens should require more explicit legislative direction. The task of distinguishing a religion from something else (e.g., a delusion, a personal credo, or a fraud) is a recurring and perplexing problem, and the outer limits of what is “religious” may be ultimately unascertainable. See Africa v. Commonwealth of Pennsylvania, supra; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 438-441 (2d Cir. 1981); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C.Cir.), cert, denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Washington Ethical Society" }, { "docid": "18815067", "title": "", "text": "the significant question whether [the belief] is ‘truly held.’ ”). Even if the Court determines that the plaintiff organization and its adherents are sincere in their beliefs, they must still establish that their beliefs are religious in nature. The definitions of the words “religion” and “religious” are by no means free of ambiguity. See Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C.Cir.1957). See also Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (definition of religion in first amendment cases). The United States Supreme Court has not established a clear standard for determining which beliefs are religious. The Supreme Court has, however, distinguished between personal secular philosophy and religious beliefs. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) (distinguishing between the religious belief of the Amish and personal philosophy of Thoreau). In Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir.), cert. denied, - U.S. -, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982), the court set forth a three-part test for determining whether a plaintiff’s goals are religious. The test addresses the questions of: (1) whether the beliefs address fundamental and ultimate questions concerning the human condition, (2) whether the beliefs are comprehensive in nature and constitute an entire system of belief instead of merely an isolated teaching, and (3) whether the beliefs are manifested in external forms. 662 F.2d at 1032. Many courts use a definition by analogy approach, inquiring whether the beliefs espoused hold “the same important position for members of one of the new religions as the traditional faith holds for more orthodox believers ... . ” Malnak v. Yogi, 592 F.2d 197, 207 (3d Cir. 1979). Section 501(c)(3) states that an exempt organization must be organized and operated exclusively for religious purposes. Courts have, however, interpreted the word “exclusively” to mean “substantially.” If an organization engages in substantial political activity, in contrast to religious activity, the organization is denied tax exempt status even if the political activity is religiously motivated. Contracting Plumbers Cooperative Restoration Corp. v. U.S., 488 F.2d 684 (2d Cir." }, { "docid": "1390918", "title": "", "text": "not explain in what respect an individual’s beliefs must be parallel to the beliefs of conventional religious faiths (in fervency of beliefs? in an overarching world vision? in explaining the meaning of life or our place in the universe? in believing in powers beyond the ken of science or pure reason?). In Torcaso, the Court struck down a Maryland law requiring notaries to declare their belief in God as a condition to holding office. States may not, the Court said, “aid all religions against non-believers,” or “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Id. at 495, 81 S.Ct. 1680. To this last statement, which signified that “religion” did not necessarily entail a belief in God, the Court attached a footnote: Among religions in this country which do not teach what would generally be considered a belief in the existence of God áre Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopae-dia Brittanica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254- 313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47. Id. at 495 n. 11. Buddhism and Taoism are well established Eastern religions. “The other two examples given by the Court refer to explicitly non-Theist organized groups, discussed in cases cited in the footnote, that were found to be religious for tax exemption purposes primarily because of their organizational similarity to traditional American church groups.” Malnak v. Yogi, 592 F.2d 197, 206 (3d Cir.1979) (Adams, J., concurring). “Ethical Culture” referred to the beliefs of the Washington Ethical Society, an organization that held regular Sunday services with Bible reading, sermons, singing and meditation, and had “leaders” who preached and ministered to the group’s members. See Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127, 128" }, { "docid": "23475393", "title": "", "text": "Maguire v. Wilkinson, 405 F.Supp. 637, 640 (D.Conn.1975). In addition, in two recent decisions, the Supreme Court observed, without commenting upon the significance of its observation, that the religious claim with which it dealt was sincerely held. Thomas v. Review Bd., Ind. Employment Sec. Div., - U.S. -, -, 101 S.Ct. 1425, 1434, 67 L.Ed.2d 624 (1981) (“petitioner terminated his work because of an honest conviction that such work was forbidden by his religion”); Wisconsin v. Yoder, 406 U.S. 205, 235, 92 S.Ct. 1526, 1543, 32 L.Ed.2d 15 (1972) (“the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs”). . L. Tribe, American Constitutional Law 859 (1978). See Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 (1974) (first amendment does not protect “so-called religions which tend to mock established institutions and are obviously shams and absurdities and whose members are patently devoid of religious sincerity’’); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development: Part I, The Religious Liberty Guarantee, 80 Harv.L.Rev. 1381, 1417-18 (1967); Comment, The Religious Rights of the Incarcerated, supra note 6, at 861 n.306 (sincerity inquiry is “especially important in prison free exercise cases because the bleakness of institutional life may create an incentive falsely to allege religious motivation for acts” otherwise forbidden by prison authorities). . There is nothing in the record to indicate that Africa has merely “adopt[ed] religious nomenclature and cynically use[d] it as a shield to protect [himself] when participating in antisocial conduct that otherwise stands condemned,” United States v. Kuch, 288 F.Supp. 439, 443 (D.D.C.1968), or that MOVE is “a masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful and/or reasonably disallowed by the various prison authorities but for the attempts which have been and are being made to classify them as ‘religious.’ ” Ther-iault v. Silber, 453 F.Supp. 254, 260 (W.D.Tex. 1978). . See Malnak v. Yogi, 592 F.2d 197, 200-07 (3d Cir. 1979) (Adams, J., concurring); Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056, 1057-66 (1978). . See" }, { "docid": "19815211", "title": "", "text": "for the ministry of the Church are not sincere and genuinely felt. We believe that the Church’s ministry and work and the religion espoused by the Church and its ministry possess the cardinal characteristics associated with traditional “recognized” religions in that it teaches and preaches a belief in a Supreme Being, a religious discipline and tenets to guide one’s daily existence. Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957), cited in United States v. Kuch, 288 F.Supp. 439, 444 (D.D.C.1968); Remmers, supra, at 540-41. We conclude from the affidavits and record herein that there is no genuine issue as to any material fact or the freedom of belief issue. Accordingly the plaintiffs are entitled as a matter of law to partial declaratory relief to the effect that the Church and its ministry espouses and teaches a bona fide religion aligned with the Christian beliefs and faith and is entitled to the protection of the establishment clause; and the Church, its members and the inmates have standing to contest the Ban. Freedom to Act: It is a truism that a prisoner does not lose his constitutional rights, especially those flowing from the First Amendment, with the closing of the prison gates. Nevertheless, he must sustain such restrictions upon those rights as may necessarily result from a lawful judicial sentence of imprisonment. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). It appears from the record evidence that to alleviate these restrictions, rules and regulations of the various penal institutions involved provide for: (a) The maintenance of house Chaplains and entry by outside ministries of the principal religions for in prison inmate congregated religious services, and (b) Private visitations with individual inmates by ministers of the various faiths, including the Church. These religious programs and visitations are on a restricted basis; i. e., consistent with established reasonable rules for individual and group discipline and control for the safety of persons and property. No challenge to these rules and regulations nor their restrictive effect upon inmate participation in religious practice is involved herein." } ]

[ { "docid": "21947771", "title": "", "text": "sufficient guidance on the legal principles, and we alter judgment only if the error was prejudicial. Bagherzadeh v. Roeser, 825 F.2d 1000, 1003 (6th Cir.1987); see also Biodex, 946 F.2d at 853. Importantly, “[ujnder this standard, jury instructions must be both legally correct and sufficiently comprehensive to address factual issues for which there is disputed evidence of record.” Biodex, 946 F.2d at 854 (emphasis added). Suppression or concealment is a legal question, supported by underlying facts. See Fujikawa v. Wattanasin, 93 F.3d 1559, 1567 (Fed.Cir.1996) (“Suppression or concealment of the invention is a question of law which we review de novo.”) A district court’s decision to preclude expert testimony is an evidentiary issue that is reviewed for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-43, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (“[Ajbuse of discretion is the proper standard of review of a district court’s evidentiary rulings.”). This court reviews the district court’s grant of summary judgment of non-infringement de novo. Hilgraeve Corp. v. McAfee Assocs., Inc., 224 F.3d 1349, 1352 (Fed.Cir.2000). Summary judgment is proper only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Claim construction is an issue of law, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc); Phillips v. AWH Corp., 415 F.3d 1303, 1328 (Fed.Cir. 2005) (en banc). Infringement, whether literal or under the doctrine of equivalents, is a question of fact. Ferguson Beauregard v. Mega Sys., Inc., 350 F.3d 1327, 1338 (Fed.Cir.2003). Inequitable conduct is an equitable issue committed to the discretion of the trial court and reviewed by this court under an abuse of discretion standard. Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir. 1988) (en banc" } ]

[ { "docid": "14626232", "title": "", "text": "permit no more than “about 0.5% silicon” and therefore granted summary judgment of noninfringement. AK Steel, 234 F.Supp.2d at 720. The judge also adopted the special master’s thorough construction of claims 1, 3, 5, and 7 of the '549 patent as encompassing Type 1 aluminum and his conclusion that the patent did not enable one skilled in the art to practice the invention with Type 1 aluminum, as required by 35 U.S.C. § 112, ¶ 1 .Id. at 718. The court therefore granted summary judgment of invalidity with respect to those '549 patent claims. Id. at 719. AK Steel timely appealed and Sollac timely cross-appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, in deciding whether summary judgment is warranted, the court “must view the evidence presented through the prism of the substantive evidentiary burden” that would inhere at trial. Id. at 245, 106 S.Ct. 2505. A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of a claim to the accused device, requires a" }, { "docid": "2004872", "title": "", "text": "slip op. at 14. Citing, inter alia, Rapoport v. Dement, 254 F.3d 1053 (Fed.Cir.2001), the court then construed the phrase “treating or preventing macrocytic-megaloblastic anemia” to require that, in order to infringe the patent, the human subject of the claimed method take the compound with the intent of treating or preventing macrocytic-megaloblastic anemia. Jansen, slip op. at 16. Because the court found no evidence of such intent or purpose on the part of Rexall’s customers, the court granted summary judgment of noninfringement. Id. at 16-17. Jansen timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of the claim to the accused device, requires a determination that every claim limitation or its equivalent is found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are questions of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998)." }, { "docid": "22414331", "title": "", "text": "that the district court abused its discretion by denying the motion to amend because there was no delay on Innova’s part, and no unfair prejudice to Safari would result from allowing the motion. II This is an appeal from a final decision of a district court and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). We review summary judgment de novo. Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed.Cir.1994). It is well established that determining infringement is a two-step process. 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 meaning and scope of the relevant claims must be ascertained. Id. Second, the properly construed claims must be compared to the accused device. Id. Claim construction, or interpretation, is a question of law. Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-56 (Fed.Cir.1998) (en bane). When exercising the power to review claim construction, this court determines the meaning and scope of the relevant claim language and decides whether the district court’s determination of the meaning and scope of the relevant claim language is coterminous with that construction. Where it is not, the district court has erred in its construction of the claims. Summary judgment is proper “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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is improper where “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” 477 U.S. at 248, 106 S.Ct. 2505. Thus, after determining the proper meaning and scope of the relevant claim language, we, decide without deference if the district court was correct in its judgment that no" }, { "docid": "22097078", "title": "", "text": "return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether summary judgment was appropriate, we view the evidence in a light most favorable to the party opposing the motion with doubts resolved in favor of the opponent, which in this case is Ethicon. See Transmatic, Inc. v. Guiton Indus., Inc., 53 F.3d 1270, 1274, 35 USPQ2d 1035, 1038 (Fed.Cir.1995). 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 Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993). The first step, claim construction, is a question of law which we review de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-56, 46 USPQ2d 1169, 1172-75 (Fed.Cir.1998) (in banc); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-81, 34 USPQ2d 1321, 1329-31 (Fed.Cir.1995) (in bane), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). In the previous appeal, this court established the construction of all the claim terms in dispute. See Ethicon II, 93 F.3d at 1577-83, 40 USPQ2d at 1022-27. Thus, claim construction need not be repeated here, as our prior construction is law of the case. See Steams v. Beckman Instruments, Inc.. 737 F.2d 1565, 1568, 222 USPQ 457, 459 (Fed.Cir.1984). The second step of the infringement analysis, determining whether a particular device infringes a properly construed claim, is a question of fact. See Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 USPQ 1137, 1140 (Fed.Cir.1983). As subh, it is amenable to summary judgment where, inter alia, no reasonable fact finder could find infringement. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S.Ct. 1040, 1053 n. 8, 137 L.Ed.2d 146, 41 USPQ2d 1865, 1875 n. 8 (1997). Regarding this step, we previously affirmed the district court’s decision granting summary judgment of lack of" }, { "docid": "8755972", "title": "", "text": "the test had a ± 5 ppm margin of error, the court determined that that evidence was insufficiently precise to prove infringement, and thus granted summary judgment in favor of appellees. On July 13, 2006, the court entered judgment of noninfringement based on the burden of proof motion in favor of appel-lees, pursuant to Federal Rule of Civil Procedure 54(b). Warner Lambert timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review the district court’s grant of summary judgment de novo, reapplying the standard applicable at the district court. See Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301 (Fed.Cir.1999). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). In addition, in deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted.... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456 (Fed.Cir.1998). Step two, comparison of the claim to the accused device, requires a determination that every claim limitation or its equivalent be found in the accused device. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are questions of fact, and on summary judgment, the issue is whether" }, { "docid": "10556529", "title": "", "text": "reconsideration, alleging in his motion that the patents are invalid based upon newly discovered evidence. In opposition, Telular filed a motion to strike Serrano’s motion. The court granted the motion to strike and it also granted Telular’s petition for attorney fees. After deciding on summary judgment in favor of Telular on liability, the district court made findings of fact and arrived at conclusions of law concerning other issues not on appeal. The parties stipulated to the amount of damages as compensation for the infringement and the court entered final judgment. Serrano now appeals to this court. DISCUSSION Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Johnston v. IVAC Corp., 885 F.2d 1574, 1576-77, 12 USPQ2d 1382, 1383 (Fed.Cir.1989). Thus, summary judgment may be granted when no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 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 nonmovant. Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1274, 35 USPQ2d 1035, 1038 (Fed.Cir.1995). We review de novo a district court’s grant of summary judgment. Conroy v. Ree bok Int’l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994). A. Infringement Determining whether a patent claim has been infringed 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 Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993). Claim construction is a question of law, which we review de novo. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1329 (Fed.Cir.1995) (in banc), aff'd, — U.S. -, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d" }, { "docid": "4028135", "title": "", "text": "to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summary judgment is warranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hilbum v. Murata Elecs. North Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999). Thus, the task is to determine whether, considering the evidence in the light most favorable to Mr. Orenshteyn, the non-moving party, there is evidence on which the trier of fact could reasonably find a verdict in his favor. See Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505; Hilbum, 181 F.3d at 1225; Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). III. Analysis Citrix contends that it is entitled to summary judgment on the issues of non-infringement and invalidity because the undisputed evidence indicates that none of the alleged products infringes on the claims of either the ’942 or ’569 patents, and that those patents were fully anticipated by at least five prior arts. I agree. A. Citrix’s Products Do Not Infringe ON MR. ORENSHTEYN’S PATENTS An infringement analysis entails a two step process. First, I must determine the meaning and scope of the patent claims asserted to be infringed. Second, the construed claims must be compared to the device accused of infringing. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 384, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); Sextant Avionique, S.A. v. Analog Devices, Inc., 172 F.3d 817, 825 (Fed.Cir.1999). Mr. Orenshteyn bears the burden of proving infringement by a preponderance of the evidence, and must show that every limitation set forth in his patent claim is present in the accused Citrix products. See Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed.Cir. 1991). Mr. Orenshteyn has utterly" }, { "docid": "1932163", "title": "", "text": "is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ticali, 41 F.Supp.2d at 254. In deciding whether summary judgment is appropriate, the court should resolve all ambiguities and draw all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Summary judgment is warranted when the nonmov-ant has no evidentiary support for an essential element on which it bears the burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir.1991). The Court of Appeals for the Federal Circuit has repeatedly stated that, “summary judgment is as appropriate in a patent case as in any other.” Rockport Co. v. Deer Stags, Inc., 65 F.Supp.2d 189, 192 (S.D.N.Y.1999) (quoting Avia Group Int’l, Inc. v. L.A. Gear Ca., Inc., 853 F.2d 1557, 1561 (Fed.Cir.1988)); see also Barmag Bamer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 835 (Fed.Cir.1984); Naso v. Ki Park, 856 F.Supp. 201, 204 (S.D.N.Y.1994) (Conner, J.) (a summary judgment of non-infringement may be appropriate where there are no genuine issues of material fact). This applies to design patent as well as utility patent cases. Avia, 853 F.2d at 1561. II. Design Patent Infringement A design patent protects the non-functional aspects of an ornamental design as shown in the patent. Elmer v. ICC Fabricating Inc., 67 F.3d 1571, 1577 (Fed.Cir.1995). Determining whether a design patent has been infringed involves a two-step analysis. First, the court must construe the patent claim to determine its meaning and scope as a matter of law. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). Second, the properly construed patent claim must be compared to the accused design to determine whether it infringes the patent. See Elmer, 67 F.3d at 1577. In the second step, the patented and accused designs are compared to determine whether the accused design is substantially similar in appearance to the patented design. Id. In that comparison," }, { "docid": "22279804", "title": "", "text": "is entitled to summary judgment under Rule 56(c) “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.” In reviewing the district court’s grant of summary judgment, this court draws all reasonable inferences from the evidence in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate when it is apparent that only one conclusion as to infringement could be reached by a reasonable jury. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 540, 48 USPQ2d 1321, 1324 (Fed.Cir.1998). 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, since such failure will render all other facts immaterial. London v. Carson Pirie Scott & Co., 946 F.2d 1534, 1537, 20 USPQ2d 1456, 1458 (Fed.Cir.1991). A patent infringement analysis involves two steps: (1) claim construction and, (2) application of the properly construed claim to the accused product. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The first step, claim construction, is a matter of law that this court reviews without deference. Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (fin banc). Whether the accused device con tains an element corresponding to each claim limitation, or its equivalent, is a question of fact reviewed under the clearly erroneous standard of review. Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1125, 37 USPQ2d 1816, 1826 (Fed.Cir.1996). DISCUSSION I. Claim Construction On appeal, Telemac argues that the court misconstrued two terms of the patent. Specifically, Telemac challenges the district court’s construction of the “communication means” and the “complex billing algorithm.” A. “Communication Means” Claim 1 of the patent claims a mobile phone system having a" }, { "docid": "19157251", "title": "", "text": "“weigh” the batch in the mixer as required by the claim limitations. Defendant does not address the other claim limitations of TDM’s '614 and '812 patents, and therefore the Court may assume for purposes of the cross-motions that the Clean Earth and OENJ processes infringe those other limitations. As a further basis for its cross-motion for summary judgment, TDM alleges that Defendant refused to respond adequately to interrogatories and document requests relating to: (1) the methods for processing dredged material utilized by the government’s contractors or subcontractors; and (2) the factual basis for the government’s contention that it has not infringed any of the claims of patents '614 or '862. (PL’s Cross-Mot. for Summ. J. at 3.) A claim for patent infringement must be proven by a preponderance of the evidence. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 261 F.3d 1329, 1336 (Fed.Cir.2001). Patent infringement is a two-step inquiry. First, the Court must construe the disputed patent claims as a matter of law. Markman, 517 U.S. at 372-74, 116 S.Ct. 1384 (1996); Gen. Am. Transp. Corp. v. Cryo-Trans, Inc., 93 F.3d 766, 769 (Fed.Cir.1996), rehearing denied, (1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1334, 137 L.Ed.2d 493 (1997). Second, the Court as trier of fact must determine whether the accused product, composition, system, or process contains each limitation of the properly construed claims, either literally or under the doctrine of equivalents. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The first step is a question of law, and the second step is a question of fact. Markman, 517 U.S. at 372-74, 116 S.Ct. 1384; Ferguson Beauregard/Logic Controls, Div. of Dover Res., Inc. v. Mega Sys., LLC, 350 F.3d 1327, 1338 (Fed.Cir.2003.) Having previously construed the asserted patent claims in its February 20, 2009 decision, the Court must now address the second part of the inquiry. For the reasons explained in detail below, and after carefully considering the parties’ positions, the Court finds that there are no genuine issues of material fact, and that Defendant is entitled" }, { "docid": "14626233", "title": "", "text": "56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, in deciding whether summary judgment is warranted, the court “must view the evidence presented through the prism of the substantive evidentiary burden” that would inhere at trial. Id. at 245, 106 S.Ct. 2505. A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of a claim to the accused device, requires a determination that every claim limitation or its equivalent is found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29,117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are questions of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). Whether the subject matter of a patent claim satisfies the enablement requirement of 35 U.S.C. § 112, ¶ 1, is a question of law based on underlying facts, In re Wands, 858 F.2d 731, 735 (Fed.Cir.1988), and, because a patent is presumed to be valid, 35 U.S.C. § 282 (2000), the evidentiary burden to show facts support ing a conclusion of invalidity is one of clear and convincing evidence, WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1355 (Fed.Cir.1999). On appeal, AK Steel argues that the court erred by interpreting the '135 patent claims too narrowly and the '549 patent claims too broadly. It contends that the claims of both patents should be construed to cover coating baths containing up to, but not including," }, { "docid": "3071064", "title": "", "text": "the ’731 patent. The court concluded that Zelinski failed to offer any factual evidence from which a jury could reasonably infer equivalence. See id. at 764. Furthermore, the district court concluded that Zelinski’s purported lack of opportunity for discovery on equivalence was unsupported in the record. See id. For these reasons, the district court granted summary judgment to Brunswick of non-infringement under the doctrine of equivalents. Zelinski appeals the grant of summary judgment of non-infringement to Brunswick. We have jurisdiction to hear this appeal under 28 U.S.C. § 1295 (1994). DISCUSSION Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). We review without deference a trial court’s grant of summary judgment, with all justifiable factual inferences drawn in favor of the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The determination of infringement requires a two-step analysis: (1) claim construction to determine the scope and meaning of the claims asserted to be infringed, and then (2) a determination of whether the properly construed claims encompass the accused device. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim construction is a matter of law over which we have independent review. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1451, 1456, 46 USPQ2d 1169, 1171, 1174 (Fed.Cir.1998) (en banc). Whether a claim encompasses an accused device, either literally or under the doctrine of equivalents, is a question of fact. See, e.g., North Am. Vaccine, Inc. v. American Cyanamid Co., 7 F.3d 1571, 1574, 28 USPQ2d 1333, 1335 (Fed.Cir.1993). A. It is standard practice that in determining the proper construction of an asserted claim, the court looks first to the intrinsic evidence — the patent specification, including of course the written description, and, if in evidence, the prosecution history. Absent an express definition in the specification of" }, { "docid": "22963677", "title": "", "text": "Fed.R.Civ.P. 56(c). In deciding whether a genuine issue of material fact exists, the court must believe the evidence of the nonmovant and draw all justifiable inferences in the nonmovant’s favor. See 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 summary judgment de novo. See Johns Hopkins Univ. v. Cellpro, Inc., 152 F.3d 1342, 1353, 47 USPQ2d 1705, 1713 (Fed.Cir.1998). “An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (citations omitted). While claim construction is a question of law, see Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1451, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc), infringement, whether literal or under the doctrine of equivalents, is a question of fact, see Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). A. The ’464 Patent With respect to the ’464 patent, Moore appeals only the district court’s grant of summary judgment of no infringement under the doctrine of equivalents; it does not seek to disturb the district court’s grant of summary judgment of no literal infringement. 1. Infringement of Claim 1 Moore contends that the longitudinal strips of the accused SRC form, which extend but a minority of the length of its longitudinal margins, are equivalent to the claimed strips, which extend a “majority of the lengths” of the longitudinal margins of the patented form. Moore argues that the district court misinterpreted our decision in Sage as barring the application of the doctrine of equivalents to the “majority of the lengths” limitation. Moore emphasizes that Sage involved structural limitations, i.e., “an elongated slot at the top of the container body” and “a first constriction extending over said slot.” Sage, 126 F.3d at 1422," }, { "docid": "21018301", "title": "", "text": "decision of invalidity and unenforceability collateral estoppel effect. DISCUSSION We review a district court’s grant of summary judgment de novo. Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994). Summary judgment is appropriate when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Thus, summary judgment may be granted when no “reasonable jury could return a verdict for the nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Conroy, 14 F.3d at 1575, 29 USPQ2d at 1377 (“The moving party ... may discharge its burden by showing the district court that there is an absence of evidence to support the nonmoving party’s case.”). In determining whether there is a genuine issue of material fact, we view the evidence in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent. Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1274, 35 USPQ2d 1035, 1038 (Fed. Cir.1995). A. Infringement Determining whether a patent claim has been infringed 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 Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993). Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 983-84, 34 USPQ2d 1321, 1333 (Fed.Cir.1995) (in banc), aff'd, — U.S. -, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). In construing the claims, the court looks to the claim language, the specification, the prosecution history, and, if necessary, extrinsic evidence. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed.Cir.1996). Application of a properly construed claim to the accused device is a question of fact. Trilogy argues that the district court erred in its interpretation of the claim terms “fusion-bonded” and “fusion-bonding.” Relying on The" }, { "docid": "13789860", "title": "", "text": "only appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.2001). Determining infringement requires two steps. “First, the claim must be properly construed to determine ’its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed.Cir.1993). Claim construction is an issue of law that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must draw all justifiable inferences in favor of the non-movant. Id. B. Analysis 1. Claim Construction Boss argues that the district court erred in construing “wherein said controller is operative to interrupt power to the load responsive to said code-providing device being operatively disconnected from said controller.” Specifically, Boss contends that “interrupt” should be given its ordinary and accustomed meaning of “to break off’ or “to shut or cut off.” Bombardier responds by arguing that the inventors gave a special definition to the term “interrupt” that does not involve simple “on-off’ control of electrical power. To interpret “interrupt,” we first consult “the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). “Although words in a claim are generally given their ordinary and customary meaning, a patentee may choose to" }, { "docid": "22963676", "title": "", "text": "equivalents under the doctrine of prosecution history estoppel. The court focused on the fact the applicant had amended his claims to specify that the sheet was “devoid of adhesive extending along said edges of said sheet” to distinguish the Conti patent, as discussed above. See id. at 13-14. In view of the clear claim language and the prosecution history, the district court concluded that the accused SRC form could not satisfy the “devoid of adhesive” limitation under the doctrine of equivalents. See id. at 14-15. The district court rejected Moore’s contention that summary judgment was premature because discovery had not yet been completed, stating that Moore had failed to offer “any specific expected disclosures that would alter the [cjourt’s conclusions and findings.” Id. at 15. DISCUSSION Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is enti- tied to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In deciding whether a genuine issue of material fact exists, the court must believe the evidence of the nonmovant and draw all justifiable inferences in the nonmovant’s favor. See 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 summary judgment de novo. See Johns Hopkins Univ. v. Cellpro, Inc., 152 F.3d 1342, 1353, 47 USPQ2d 1705, 1713 (Fed.Cir.1998). “An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (citations omitted). While claim construction is a question of law, see Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1451, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc), infringement, whether literal or under the doctrine of" }, { "docid": "5462253", "title": "", "text": "23,1996). This appeal followed. DISCUSSION I. Summary judgment is proper in a case where 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) (1998). We review the district court’s grant of summary judgment de novo. See Aktiebolag v. E.J. Co., 121 F.3d 669, 672, 43 U.S.P.Q.2d 1620, 1622 (Fed.Cir.1997) (citing Conroy v. Reebok Int'l, Ltd., 14 F.3d 1570, 1575, 29 U.S.P.Q.2d 1373, 1377 (Fed.Cir.1994)). In reviewing a summary judgment decision, “[t]he evidence of the nonmov-ant 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). While the movant has the burden of establishing that there are no genuine issues of material fact, the party opposing summary judgment “must set forth specific facts showing that there is a genuine issue [of material fact] for trial.” Id. at 256, 106 S.Ct. 2505. A patent infringement analysis entails two steps. “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 U.S.P.Q.2d 1836, 1839 (Fed.Cir.1993); see Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 U.S.P.Q.2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 U.S.P.Q.2d 1461 (1996). Claim construction is purely a question of law, which we review de novo. See Markman, 52 F.3d at 979, 34 U.S.P.Q.2d at 1329; Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1455, 46 U.S.P.Q.2d 1169, 1173 (Fed.Cir.1998) (in banc) (reiterating that “the totality of claim construction is a legal question to be decided by the judge” and “that the de novo standard of review as stated in [this court’s in banc Markman opinion] remains good law”). In interpreting the claims of a patent, the court first looks to the intrinsic evidence of record, including the claims of" }, { "docid": "23595810", "title": "", "text": "with its terms at the conclusion of his employment. TechSearch appeals the district court’s judgment. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). STANDARD OF REVIEW This court reviews a district court’s grant of summary judgment without deference. Cortland Line Co. v. Orvis Co., 203 F.3d 1351, 1355, 53 USPQ2d 1734, 1736 (Fed.Cir.2000). The moving party is entitled to summary judgment “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). In reviewing the district court’s grant of summary judgment, this court draws all reasonable inferences from the evidence in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate when it is apparent that only one conclusion as to infringement could be reached by a reasonable jury. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 540, 48 USPQ2d 1321, 1324 (Fed.Cir.1998). Summary judgment of noninfringement is also 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. London v. Carson Pirie Scott & Co., 946 F.2d 1534, 1537, 20 USPQ2d 1456, 1458 (Fed.Cir.1991). A patent infringement analysis involves two steps: 1) claim construction; and 2) application of the properly construed claim to the accused product. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The first step, claim construction, is a matter of law that this court reviews without deference. Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). Whether the accused device contains an element corresponding to each claim limitation or its equivalent is a question of fact, which, on summary judgment, is a question we review to determine whether a material" }, { "docid": "3416558", "title": "", "text": "Opinion for the court filed by PAULINE NEWMAN, C.J., Dissenting opinion filed by CLEVENGER, C. J. PAULINE NEWMAN, Circuit Judge. Netword, LLC, appeals the summary judgment of the United States District Court for the Eastern District of Virginia, ruling that claim 1 of Netword’s United States Patent No. 5,764,906 (the '906 patent) is not infringed by Centraal Corporation’s RealNames system, either literally or under the doctrine of equivalents. We affirm the judgment of non-infringement. I CLAIM CONSTRUCTION An infringement analysis entails two steps. In the first step the court “construes” the patent claims by establishing the scope and boundaries of the subject matter that is patented, as a matter of law, and in the second step the trier of fact applies the construed claims to the accused device. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The court’s construction of the claims often decides the question of infringement, whether literal infringement or under the doctrine of equivalents. See Vivid Technologies, Inc. v. American Science & Engineering, Inc., 200 F.3d 795, 803, 53 USPQ2d 1289, 1294 (Fed.Cir.1999) (“It is well recognized that the construction of the claims may resolve some or all of the issues of infringement.”) The district court’s claim construction, and the grant of summary judgment based thereon, receive plenary review on appeal. See EMI Group North America, Inc. v. Intel Corp., 157 F.3d 887, 891, 48 USPQ2d 1181, 1184 (Fed.Cir.1998). If disputed questions of material fact underlie the summary judgment “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The appellate tribunal must assure itself that the nonmovant could not prevail on any reasonable version of the facts as presented on the summary judgment record. See id. at 250, 106 S.Ct. 2505 (the purpose of the summary judgment procedure is to avoid an unnecessary trial). The '906 patent, entitled “Universal Electronic" }, { "docid": "22088863", "title": "", "text": "of the invalidity of claims 6-10, even if the district court’s judgment did not rest on invalidity, because Bard raised the issue below in its motion for summary judgment and the record supports its position. Bard further asserts that BD did not argue in its reply to Bard’s motion for summary judgment that dependent claims 8-10 were valid even if independent claim 7 were to be held invalid and, thus, the validity of claims 8-10 has never been a separate issue in this case. Issues 1. Did the district court properly grant summary judgment of noninfringement as to any claims? 2. Did the district court’s judgment encompass its holding of the invalidity of independent claims 6 and 7? 3. Did BD waive review of the issues of invalidity? II Summary Judgment Standard As in other cases, the grant of summary judgment under Fed.R.Civ.P. 56, is appropriate in a patent case where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835, 221 USPQ 561, 564 (Fed.Cir. 1984) (summary judgment of invalidity); Townsend Eng’g Co. v. HiTec Co., 829 F.2d 1086, 1089, 4 USPQ2d 1136, 1138 (Fed.Cir.1987) (summary judgment of noninfringement). As the Supreme Court explained in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), “[T]he substantive law will identify which facts are material.... [and a fact will be considered genuinely disputed] if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Ill Noninfringement of Claim 1 To establish infringement of a patent, every limitation set forth in a claim must be found in an accused product or process exactly or by a substantial equivalent. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1259, 9 USPQ2d 1962, 1967 (Fed.Cir.1989). Determination of patent infringement is a two-step process: “the meaning of the claims must be learned from a study of all relevant patent documents; and the claims must be applied to" } ]

[ { "docid": "5648506", "title": "", "text": "of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), Mr. Justice Powell’s opinion declared that “Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.” Id. at 287, 98 S.Ct. at 2747. Four other Justices (Justices Brennan, White, Marshall and Blackmun) also apparently rejected the implication of Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), that impact alone, without discriminatory intent, is, in some contexts, sufficient to establish a prima facie violation of Title VI. 438 U.S. at 352, 98 S.Ct. at 2780. Instead, the four Justices stated that “Title Vi’s standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution’s . . . .” Id. Lau was not expressly overruled in Bakke and we must have further word from the Supreme Court on its vitality as precedent. We are not unmindful of the fact, however, that a panel of this circuit, since Bakke, has held that, in the setting of teacher employment, Title VI provides an “effects” test standard by analogy to Title VII cases. Board of Education v. Califano, 584 F.2d 576 (2d Cir. 1978), cert. granted, - U.S. -, 99 S.Ct. 1211, 59 L.Ed.2d 453 (1979). That case did not expressly consider the impact of the Bakke opinions on the continued authority of Lau v. Nichols. In any event, Board of Education v. Califano examined Title VI standards in the context of claims of teacher employment discrimination, and the court accordingly drew an analogy to the standards applicable under Title VII of the Civil Rights Act, 42 U.S.C. 2000e et seq. Since the case on appeal before us is a school desegregation case rather than an employment case, the more appropriate analogy here is to Title IV, as explained above, rather than to Title VII as in Board of Education v. Califano. If the Supreme Court should decide that Title VI generally supports judicially mandated affirmative action beyond the requirements of the Fourteenth Amendment and that" } ]

[ { "docid": "8098914", "title": "", "text": "2040, 48 L.Ed.2d 597 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least in some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title Vi’s standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution’s, we have serious doubts concerning the correctness of what appears to be the premise of that decision. Id. 438 U.S. at 352, 98 S.Ct. at 2779. In a recent Supreme Court opinion, Justice Marshall, joined by Justice Brennan and Justice Blackmun, concurred and expressed similar sentiments: In Bakke, five members of the Court were of the view that the prohibitions of Title VI — which outlaw racial discrimination in any program or activity receiving federal financial assistance — are coexistent with the Equal Protection guarantees of the Fourteenth Amendment. Fullilove v. Klutznick, 448 U.S. 448, 517 n.l, 100 S.Ct. 2758, 2795 n.l, 65 L.Ed.2d 902 (1980). Similarly, in Board of Education v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), the Court clearly indicated that Lau is not dispositive of the issue of the standard under Title VI. In that case, the Court held that certain sections of the Emergency School Aid Act (ESAA) incorporated the disparate impact standard for testing illegal racial discrimination. When addressing the Board’s argument that because Title VI required intentional discrimination for a violation so should the ESAA, the Court stated: There is ... no need here for the Court to be concerned with the issue whether Title VI of the Civil Rights Act of 1964 incorporates the constitutional standard. See University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Consideration of that issue would be necessary only if there were a positive indication either in Title VI or in ESAA that the two Acts were intended to be coextensive. Id. 444" }, { "docid": "8098915", "title": "", "text": "448 U.S. 448, 517 n.l, 100 S.Ct. 2758, 2795 n.l, 65 L.Ed.2d 902 (1980). Similarly, in Board of Education v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), the Court clearly indicated that Lau is not dispositive of the issue of the standard under Title VI. In that case, the Court held that certain sections of the Emergency School Aid Act (ESAA) incorporated the disparate impact standard for testing illegal racial discrimination. When addressing the Board’s argument that because Title VI required intentional discrimination for a violation so should the ESAA, the Court stated: There is ... no need here for the Court to be concerned with the issue whether Title VI of the Civil Rights Act of 1964 incorporates the constitutional standard. See University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Consideration of that issue would be necessary only if there were a positive indication either in Title VI or in ESAA that the two Acts were intended to be coextensive. Id. 444 U.S. at 149, 100 S.Ct. at 374. * * # * # * It does make sense to us that Congress might impose a stricter standard under ESAA than under Title VI of the Civil Rights Act of 1964. A violation of Title VI may result in a cutoff of all federal funds, and it is likely that Congress would wish this drastic result only when the discrimination is intentional. In contrast, only ESAA funds are rendered unavailable when the ESAA violation is found. Id. at 150, 100 S.Ct. at 374. ESAA was an attempt by Congress to bring about the same remedy without regard to the cause of the problem, while Title VI may have been intended to remedy the problem only when its cause was intentional discrimination. Id. at n.13, 100 S.Ct. at n.13. The dissent in Board of Education by Justice Stewart with Justices Powell and Rehnquist joining, also assumed that the Lau implication was not good law on this point. The Justices expressed the opinion that the intent standard should apply" }, { "docid": "13342082", "title": "", "text": "v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; O’Brien v. DiGrazia, 1 Cir. 1976, 544 F.2d 543, 545. But generous interpretation of a civil rights complaint may not supply an essential element of a claim not appearing in the complaint. With this standard in mind, we turn to a discussion of each of defendants’ three arguments. I. Intent to Discriminate The requirement of showing purposeful or intentional discrimination as a condition to an equal protection violation had its genesis in the school desegregation cases. See, Keyes v. School District No. 1, 1973, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548. Thereafter the Supreme Court extended the intent requirement to embrace all claims based on a failure to provide equal protection. Personnel Admin. of Mass. v. Feeney,-U.S.-, 99 S.Ct. 2282, 60 L.Ed.2d 870, 1979; Village of Arlington Heights v. Metropolitan Housing Development Corp., 1977, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 1976, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. The reach of the intent requirement, however, is limited. It applies to constitutional claims alleging violations of the Fifth and Fourteenth Amendment’s guarantees of equal protection. Washington v. Davis, supra. Furthermore, because 42 U.S.C. § 1983 creates no substantive rights but merely authorizes a private cause of action for violations of rights found elsewhere, Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508, 1979, intent is most certainly an element of plaintiffs’ claim under this section insofar as it seeks to redress violations of the Fourteenth Amendment’s equal protection clause. Assuming that there is a private cause of action under Title VI, 42 U.S.C. § 2000d et seq. and that exhaustion of administrative remedies is not required, both open questions, see, University of California Regents v. Bakke, 1978, 438 U.S. 265, 281-84, 98 S.Ct. 2733, 57 L.Ed.2d 750 (Powell, J., 379-87 (White, J.) and 418-21, 98 S.Ct. 2733 (Stevens, J., joined by Burger, Stewart, Rehnquist, JJ.), plaintiffs must prove intent as an essential element of a claim under this section as" }, { "docid": "5432218", "title": "", "text": "the Commissioner of Education of the State of New York, 8 N.Y.C.R.R. § 200 et seq. (1977). Appellants resist all but Part III of the order entered below (dealing with individualized education programs and due process documents). We affirm Part III of the order, and vacate and remand the remaining portions of the order for clarification in accordance with this opinion. In reaching its conclusions, the District Court applied standards falling short of those announced by the Supreme Court after the decision was made below, in Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 2978 n. 9, 61 L.Ed.2d 720 (1979) and Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) which held that “foreseeable result” is one type of quite relevant evidence of racially discriminatory purpose but, standing alone is not sufficient to establish the requisite discriminatory intent on the part of the Board. Such intent is required, whether the Board’s actions are being evaluated under the Equal Protection Clause or under the Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d. See, Board of Education of City School District of New York v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275, aff’g Board of Education of City School District of New York v. Califano, 584 F.2d 576 (2d Cir. 1978); Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 715 (2d Cir. 1979); Harris v. White, 479 F.Supp. 996, 1002 (D.Mass.1979). The standard of discrimination in Title VI is the same standard the Supreme Court establishes for discrimination under the Fifth and Fourteenth Amendments; “Title VI prohibits only purposeful discrimination.” Board of Education v. Harris, supra, 100 S.Ct. at p. 379 (Stewart, J., dissenting). We think it proper for the District Court in the first instance to apply Brinkman and Penick to the present case, and make a searching inquiry into intent, supported by specific findings. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The lack of specific findings" }, { "docid": "7915806", "title": "", "text": "of race. Although this supposed liability is not “vicarious” in the strictest sense (since it is based on a duty that is separate and distinct from the primary duty not to discriminate), it would clearly render a state legally responsi ble for racial discrimination that the state itself did not intentionally contribute to or cause. The question before us is whether Title VI imposes this type of “quasi-vicarious” liability. The most relevant authority on this point is Guardians Ass’n v. Civil Serv. Comm’n of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). In Guardians, a majority of the Court reaffirmed the conclusion of Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 328, 352, 98 S.Ct. 2733, 2746, 2767-68, 2779, 57 L.Ed.2d 750 (1978), that liability under Title VI is coextensive with liability under the Equal Protection Clause of the Fourteenth Amendment. See Guardians, 463 U.S. at 610-11, 103 S.Ct. at 3236-38 (Part II of concurring opinion of Powell, Rehnquist, JJ., and Burger, C. J.); id. at 612,103 S.Ct. at 3238 (O’Con-nor, J., concurring in the judgment); id. at 639-42, 103 S.Ct. at 3252-54 (Stevens, Brennan, and Blackmun, JJ., dissenting). “In view of the clear legislative intent,” the Bakke majority had written, “Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.” Bakke, 438 U.S. at 287, 98 S.Ct. at 2746 (opinion of Powell, J.). See also United States v. Fordice, — U.S. -, -n. 7, 112 S.Ct. 2727, 2737 n. 7, 120 L.Ed.2d 575 (1992) (more recently stating that Title Vi’s protections extend no further than the Fourteenth Amendment). We therefore must look to constitutional standards to determine the reach of Title VI in this ease. It is well-established that the Equal Protection Clause prohibits only intentional or purposeful discrimination. Washington v. Davis, 426 U.S. 229, 238-42, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976); Keyes v. School Dist. No. 1, 413 U.S. 189, 205, 208, 212-13, 93 S.Ct. 2686, 2696, 2697, 2699-2700, 37 L.Ed.2d 548 (1973) (finding, in the" }, { "docid": "2002124", "title": "", "text": "the racial disparity existing in the EBRP school system is not the result of intentional discrimination and can therefore not ground suit under the Fourteenth Amendment. The Board supports its argument by citing several cases requiring proof of intentional discrimination in order to state a claim under the Fourteenth and Fifteenth Amendments. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Cases such as these simply do not apply “where a statutory dual [school] system has ever existed.” United States v. Texas Education Agency, 564 F.2d 162, 165 & n. 2 (5th Cir.1977) (Austin III) (quoting Keyes v. School District No. 1, 413 U.S. 189, 201, 93 S.Ct. 2686, 2694, 37 L.Ed.2d 548 (1973)), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979). “[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. As was clearly established in Keyes and Swann, the Board had to do more than abandon its discriminatory purpose.” Dayton Board of Education v. Brinkman, 443 U.S. at 538, 99 S.Ct. at 2979 (citations omitted). See Price v. Denison Independent School District, 694 F.2d 334, 378 (5th Cir.1982) (on suggestion for rehearing). Upon consideration, we entirely agree with and uphold the district court’s determination that the EBRP school system as it existed in 1980 remained tainted with the vestiges of the statutory dual system. So many one-race schools with so profound an impact on the students in the parish was unacceptable under Brown I, Swann, and their progeny. The district court properly held that more could well be done to alleviate the incidence of one-race schools in the parish. We now turn to the plan imposed by the district court to achieve that end. III. The" }, { "docid": "5432219", "title": "", "text": "Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d. See, Board of Education of City School District of New York v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275, aff’g Board of Education of City School District of New York v. Califano, 584 F.2d 576 (2d Cir. 1978); Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 715 (2d Cir. 1979); Harris v. White, 479 F.Supp. 996, 1002 (D.Mass.1979). The standard of discrimination in Title VI is the same standard the Supreme Court establishes for discrimination under the Fifth and Fourteenth Amendments; “Title VI prohibits only purposeful discrimination.” Board of Education v. Harris, supra, 100 S.Ct. at p. 379 (Stewart, J., dissenting). We think it proper for the District Court in the first instance to apply Brinkman and Penick to the present case, and make a searching inquiry into intent, supported by specific findings. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The lack of specific findings in the carefully articulated opinion is the second problem which the District Court must remedy. In an action tried without a jury, Fed.R. Civ.P. 52(a) requires the Court to “find the facts specially and state separately its conclusions of law thereon.” Before a school system is put into a judicial receivership there must be some recognizable straightforward finding that plaintiffs have met their burden to show segregated impact and purpose; that the defined action of the school authorities was intended to, and did in fact discriminate against minority pupils. While foreseeable effects are permissible proofs of some of the components on which a decision is reached, discriminatory purpose as a motivating factor must be found to conclude the existence of a constitutional violation. The focus of the inquiry must be whether there was a desire to separate the races among the reasons for the school board’s decision and particular course of action. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273-74, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). It is the function of" }, { "docid": "14283702", "title": "", "text": "We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title Vi’s standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution’s, we have serious doubts concerning the correctness of what appears to be the premise of that decision. 438 U.S. at 352, 98 S.Ct. at 2779. Second, the Court in Board of Education v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979) — a case holding that a discriminatory impact standard is applicable under the 1972 Emergency School Aid Act (ESAA) — touched on the test for proving discrimination under Title VI. The majority, while leaving open the question of the applicable Title VI standard, suggestively noted: It does make sense to us that Congress might impose a stricter standard under ESAA than under Title VI of the Civil Rights Act of 1964. A violation of Title VI may result in a cutoff of all federal funds, and it is likely that Congress would wish this drastic result only when the discrimination is intentional. Id. at 150, 100 S.Ct. at 374. The dissent, consisting of Justices Stewart, Powell and Rehnquist, thought that an intent standard should be applied even to ESAA. Id. at 160, 100 S.Ct. at 380. Thus, against this backdrop of recent judicial decisions, it seems certain that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation.” Cannon, 648 F.2d 1104, 1109 (7th Cir. 1981). Inasmuch as the plaintiffs have failed to point to any evidence in the administrative record- — nor has the Court been able to" }, { "docid": "8098911", "title": "", "text": "or methods of administration which have the effect of subjecting individuals to discrimination,” or have “the effect of defeating or substantially impairing accomplishment of the objectives of the programs as respects individuals of a particular race, color, or national origin.” 414 U.S. at 568, 94 S.Ct. at 789, quoting 45 C.F.R. § 80.-3(b)(2). In the opinion by Justice Douglas, the Court noted that the defendant school district had “contractually agreed to ‘comply with Title VI of the Civil Rights Act of 1964 ... and all requirements imposed by or pursuant to the Regulation’ of HEW (45 C.F.R. Part 80) which are ‘issued pursuant to that title ...,’” 414 U.S. at 568-69, 94 S.Ct. at 789, and concluded that “[wjhatever may be the limits of [the Federal Government’s power to fix the terms on which its money allotments to the States shall be disbursed] ..., they have not been reached here.” Id. at 569, 94 S.Ct. at 789 (citations omitted). The Court therefore reversed a court of appeal’s holding that no relief was available under the regulations. The implication in Lau that the disparate impact or effects test applied under Title VI became subject to question by the later language in Board of Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). In that case where the Supreme Court invalidated an affirmative action special admissions program at the University of California Medical School, Justice Powell was of the opinion that Title VI should be held to impose the intentional discrimination standard. After discussing the legislative history of Title VI, he concluded: In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause of the Fifth Amendment. 438 U.S. at 287, 98 S.Ct. at 2746. A violation of the Equal Protection clause had previously been held to require a finding of intentional discrimination; disparate impact alone will not support a cause of action under the Constitution. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50" }, { "docid": "14283701", "title": "", "text": "standard the Supreme Court has established for discrimination under the fifth and fourteenth amendments. See, e.g., Cannon, supra, 648 F.2d at 1106-1109; Lora v. Board of Education for City of New York, 623 F.2d 248, 250 (2d Cir. 1980); Schmidt v. Boston Housing Authority, 505 F.Supp. 988, 992-993 (D.Mass.1981); Valadez v. Graham, 474 F.Supp. 149, 159 (M.D. Fla. 1979). As outlined by the court in Bryan v. Koch, 492 F.Supp. 212, 229-233 (S.D.N.Y.), aff’d, 627 F.2d 612 (2d Cir. 1980), the basis for this conclusion is as follows. First, in Bakke, Justice Powell and Justice Brennan — the latter being joined by Justices White, Marshall and Blackmun— concluded that Title VI incorporates the Constitution’s proscription against race discrimination. 438 U.S. at 281-287, 328-355, 98 S.Ct. at 2767. Indeed, Justice Brennan concluded that “Congress intended the meaning of the statute’s prohibition to evolve with the interpretation of the commands of the Constitution.” Id. at 340, 98 S.Ct. at 2773. The potential implications of this analysis on the continued vitality of Lau was acknowledged by Justice Brennan: We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title Vi’s standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution’s, we have serious doubts concerning the correctness of what appears to be the premise of that decision. 438 U.S. at 352, 98 S.Ct. at 2779. Second, the Court in Board of Education v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979) — a case holding that a discriminatory impact standard is applicable under the 1972 Emergency School Aid Act (ESAA) — touched on the test for proving" }, { "docid": "8098912", "title": "", "text": "regulations. The implication in Lau that the disparate impact or effects test applied under Title VI became subject to question by the later language in Board of Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). In that case where the Supreme Court invalidated an affirmative action special admissions program at the University of California Medical School, Justice Powell was of the opinion that Title VI should be held to impose the intentional discrimination standard. After discussing the legislative history of Title VI, he concluded: In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause of the Fifth Amendment. 438 U.S. at 287, 98 S.Ct. at 2746. A violation of the Equal Protection clause had previously been held to require a finding of intentional discrimination; disparate impact alone will not support a cause of action under the Constitution. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 238-18, 96 S.Ct. 2040, 2046-51, 48 L.Ed.2d 597 (1976). Though the dissenters in Bakke felt that the affirmative action program at the University should have been upheld, the opinion by Justice Brennan joined in by Justices White, Marshall and Blackmun concurred in Justice Powell’s statement that the constitutional standard applied under Title VI: We agree with Justice Powell that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection clause of the Fourteenth Amendment itself. 438 U.S. at 325, 98 S.Ct. at 2766 In our view, Title VI prohibits only the uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies; ...” Id. at 328, 98 S.Ct. at 2767. The dissenters later expressly questioned the continued viability of the Lau implications after the Bakke decision: We recognize that Lau when read in light of our subsequent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct." }, { "docid": "768675", "title": "", "text": "Emergency School Aid Act (“ESAA”), 20 U.S.C. §§ 1601-1619, applies. The Court, in light of its holding, found no need to determine explicitly whether Title VI incorporates the constitutional standard. But the majority suggestively noted that “[i]t does make sense to us that Congress might impose a stricter standard under the ESAA than under Title VI of the Civil Rights Act of 1964.” 100 S.Ct. at 374. The dissenting Justices in Board of Education v. Harris, Stewart, Powell and Rehnquist, thought an intent standard should be applied even to the ESAA. Their feelings as to Title VI and the impact of Bakke were equally clear: Title VI has been construed to contain not a mere disparate impact standard, but a standard of intentional discrimination. In Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, five members of the Court concluded that Title VI, which prohibits discrimination in federally funded programs, prohibits only discrimination violative of the Fifth Amendment and the Equal Protection Clause of the Fourteenth. Id., at 281-287, 98 S.Ct. at 2744-2746 (Powell, J.); Id., at 328-355, 98 S.Ct. at 2768-2781 (Brennan, J., joined by White, Marshall, and Blackmun, JJ.). Those constitutional provisions, in turn, have been construed to reach only purposeful discrimination. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 299, 96 S.Ct. 2040, 48 L.Ed.2d 597; Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. It thus follows from Bakke that Title VI prohibits only purposeful discrimination. Id. 100 S.Ct. at 379. Plaintiffs attempt to minimize the import of these opinions by characterizing them as “confusing dicta.” They are not so easily dismissed. They appear to represent the views of at least seven Justices. The reasoning underlying these “dicta,” moreover, and in particular Justice Brennan’s penetrating analysis of the legislative history Title VI, strongly indicate that the Court will find that the standard of" }, { "docid": "1168017", "title": "", "text": "that subsequent dicta in Supreme Court opinions questioned that conclusion. E.g., Board of Education of New York v. Harris, 444 U.S. 130, 159-60, 100 S.Ct. 363, 379- 40, 62 L.Ed.2d 275 (1979) (dissenting opinion of Stewart, Powell, and Rehnquist); Regents of the University of California v. Bakke, 438 U.S. 265, 284-87, 98 S.Ct. 2733, 2745-46, 57 L.Ed.2d 750 (1978). Nevertheless, even after Bakke, the Supreme Court reaffirmed an \"effects\" standard. Fullilove v. Klutznick, 448 U.S. 448, 479-80, 100 S.Ct. 2758, 2775-76, 65 L.Ed.2d 902 (1980). Despite these conflicting signals, a majority of Justices now agree that discriminatory intent is required. Guardians Association, 103 S.Ct. at 3236-37 (Powell, J. and Burger, C.J.); 103 S.Ct. at 3237 (Rehnquist, J., concurring in the judgment); 103 S.Ct. at 3237-38 (O'Connor, J., concurring); 103 S.Ct. at 3253 (Stevens, J., dissenting and joined by Brennan and Blackmun, JJ.). . 103 S.Ct. at 3235, n. 1 (Powell, J., concurring) (listing and analyzing votes). . This analysis derives from that applied in Title VII disparate impact claims. In the Title VII situation, \"[t]o establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that ‘any given requirement [has] a manifest relationship to the employment in question,’ in order to avoid a finding of discrimination.” Connecticut v. Teal, 457 U.S. 440, 446-47, 102 S.Ct. 2525, 2530-31, 73 L.Ed.2d 130 (1982) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971)); Do-thard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Moore v. Hughes Helicopter, 708 F.2d 475, 481 (9th Cir. 1983). In the Title VI disproportionate impact claim in the educational situation, the defendant must therefore show that any given requirement has a manifest relationship to the education in question, i.e., that the IQ tests are required by \"educational necessity.” Board of Education of New York v. Harris, 444 U.S. at 151, 100 S.Ct. at 375. . Although in Title VII disparate treatment cases" }, { "docid": "8098918", "title": "", "text": "Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. It thus follows from Bakke that Title VI prohibits only purposeful discrimination. Id. 444 U.S. at 159-60, 100 S.Ct. at 379-80, and see id. at 162, 100 S.Ct. at 380. It would seem from the above quoted language that seven of the Justices of the Supreme Court support the view that a violation of Title VI requires intentional discrimination. We agree that this is the better view and other courts are in accord. In Parents Association of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir. 1979), for example, the court noted that at least in school discrimination cases, Title VI should be held to impose the intentional discrimination standard. The court distinguished its earlier opinion in Board of Education of New York City v. Califano, 584 F.2d 576 (2d Cir. 1978), affirmed on other grounds, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), where it had held that Title VI was violated by disparate impact alone in an employment discrimination context. The court noted that the earlier opinion had relied upon an analogy to Title VII which had been held to impose the disparate impact test, but decided that in the school case, the proper analogy would be to Title IV which by its terms imposed the higher intentional discrimination standard. 598 F.2d 716, see 42 U.S.C. § 2000c-6. The court held, therefore, that the higher standard ought to apply under Title VI in the school discrimination area. In agreement is the detailed opinion in Bryan v. Koch, 492 F.Supp. 212, 229-33 (S.D.N.Y.), affirmed, 627 F.2d 612 (2d Cir. 1980), where the court held that the closing of a city hospital must be shown to have been intentionally discriminatory to be a violation of Title VI," }, { "docid": "8098919", "title": "", "text": "earlier opinion in Board of Education of New York City v. Califano, 584 F.2d 576 (2d Cir. 1978), affirmed on other grounds, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), where it had held that Title VI was violated by disparate impact alone in an employment discrimination context. The court noted that the earlier opinion had relied upon an analogy to Title VII which had been held to impose the disparate impact test, but decided that in the school case, the proper analogy would be to Title IV which by its terms imposed the higher intentional discrimination standard. 598 F.2d 716, see 42 U.S.C. § 2000c-6. The court held, therefore, that the higher standard ought to apply under Title VI in the school discrimination area. In agreement is the detailed opinion in Bryan v. Koch, 492 F.Supp. 212, 229-33 (S.D.N.Y.), affirmed, 627 F.2d 612 (2d Cir. 1980), where the court held that the closing of a city hospital must be shown to have been intentionally discriminatory to be a violation of Title VI, Lora v. Board of Education, 623 F.2d 248, 250 (2d Cir. 1980), which held that the assignment of handicapped children to special schools must be shown to be intentionally discriminatory to violate Title VI, and Harris v. White, 479 F.Supp. 996, 1002 (D.Mass. 1979), which held the intent standard applied to a Title VI challenge to a city’s employment practices. Board of Education discussed in Parents’ Association and which relied upon Lau in reaching its conclusion that Title VI imposed the disparate impact test in the employment discrimination area, would not seem to aid significantly appellant’s position here in light of the Supreme Court’s distinguishing Title VI from the ESAA in its affirmance of the case, and the Second Circuit’s narrowing of the Board of Education holding in Parents’ Association. In short, we believe that a majority of the Justices on the Supreme Court as well as other courts that have recently addressed this question in similar circumstances would hold that a violation of Title VI requires an intentional discriminatory act and that disparate impact" }, { "docid": "13342081", "title": "", "text": "the objections, and the parties’ briefs and for the reasons outlined below we adopt some of the Magistrate’s rulings and reject others. In particular, we grant the state defendants’ motion to dismiss the private plaintiffs’ claims based on the Thirteenth and Fourteenth Amendments, 42 U.S.C. §§ 1981 and 1983, and Title VI, 42 U.S.C. § 2000d, for failure to allege intentional discrimination. We deny state defendants’ motion to dismiss the private plaintiffs’ Title VII and revenue sharing claims for lack of standing, without prejudice to defendants’ renewing their objections in the context of the motion for class certification. And we deny state defendants’ motions to dismiss the claims based on the Revenue Sharing Act, 31 U.S.C. § 1242(a). The standard used to evaluate a motion to dismiss for failure to state a claim is a liberal one: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; O’Brien v. DiGrazia, 1 Cir. 1976, 544 F.2d 543, 545. But generous interpretation of a civil rights complaint may not supply an essential element of a claim not appearing in the complaint. With this standard in mind, we turn to a discussion of each of defendants’ three arguments. I. Intent to Discriminate The requirement of showing purposeful or intentional discrimination as a condition to an equal protection violation had its genesis in the school desegregation cases. See, Keyes v. School District No. 1, 1973, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548. Thereafter the Supreme Court extended the intent requirement to embrace all claims based on a failure to provide equal protection. Personnel Admin. of Mass. v. Feeney,-U.S.-, 99 S.Ct. 2282, 60 L.Ed.2d 870, 1979; Village of Arlington Heights v. Metropolitan Housing Development Corp., 1977, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 1976, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. The reach" }, { "docid": "12560959", "title": "", "text": "of the responsible federal agencies, and the one Supreme Court decision on point all reflect the principle — as an element of “simple justice” — that a recipient of federal funds should not use those funds in a manner which has the effect of excluding persons on the basis of race, color or national origin. The controlling precedent in this Circuit is to the same effect: Title VI findings of discrimination may be predicated on disparate impact without proof of unlawful intent. Board of Education v. Califano, 584 F.2d 576, 589 (2d Cir. 1978), aff’d on other grounds sub nom. Board of Education v. Harris, 444 U.S. 130, 100 S. Ct. 363, 62 L.Ed.2d 275 (1979). And other circuits have applied the same standard. E. g., Guadalupe Org., Inc. v. Tempe Elem. School Dist, 587 F.2d 1022, 1029 (9th Cir. 1978); Serna v. Portales Municipal Schools, 499 F.2d 1147, 1153-54 (10th Cir. 1974). In fact, with the exception of cases involving school desegregation, it appears that no court has imposéd the intent standard in a Title VI ease. The court below opined that dicta in the concurring opinion of four justices in Regents of the University of California v. Bakke, 438 U.S. 265, 324, 98 S.Ct. 2733, 2766, 57 L.Ed.2d 750 (1978), and the dissenting opinion of Justice Stewart in Board of Education v. Harris, 444 U.S. 130, 152, 100 S.Ct. 363, 375, 62 L.Ed.2d 275 (1979), had undermined the authority of Lau v. Nichols, supra. These dicta do not justify the district court’s burial of Lau. The majority in Board of Education v. Harris, for example, expressly declined to decide the issue of whether Title VI incorporated an intent test. 444 U.S. at 149,100 S.Ct. at 374. And most recently, a plurality opinion of the Court in Fullilove v. Klutznik, - U.S. -, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), invoked Lau in support of the Court’s decision. Since the contemporaneous agency regulations and, in my view, the legislative history, clearly support application of an effects test, I believe we are correct to wait for an actual decision from" }, { "docid": "14283700", "title": "", "text": "“impact” standard under Title VI, stated: Discrimination is barred which has [an adverse] effect even though no purposeful design is present: a recipient “may not .... utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination” or have “the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.” Id. at 568 [94 S.Ct. at 789] (Emphasis in original). See also, Board of Education v. Califano, 584 F.2d 576, 589 (2d Cir. 1978), aff’d on other grounds sub nom. Board of Education v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979); Guadalupe v. Temple Elementary School, 587 F.2d 1022 (9th Cir. 1978); Johnson v. City of Arcadia, 450 F.Supp. 1363 (M.D. Fla. 1978). Recently, however, courts have read the Opinions in Bakke in conjunction with those in Board of Education v. Harris, supra, as indicating that Lau has been overruled and that the standard of proof for Title VI violations is the same standard the Supreme Court has established for discrimination under the fifth and fourteenth amendments. See, e.g., Cannon, supra, 648 F.2d at 1106-1109; Lora v. Board of Education for City of New York, 623 F.2d 248, 250 (2d Cir. 1980); Schmidt v. Boston Housing Authority, 505 F.Supp. 988, 992-993 (D.Mass.1981); Valadez v. Graham, 474 F.Supp. 149, 159 (M.D. Fla. 1979). As outlined by the court in Bryan v. Koch, 492 F.Supp. 212, 229-233 (S.D.N.Y.), aff’d, 627 F.2d 612 (2d Cir. 1980), the basis for this conclusion is as follows. First, in Bakke, Justice Powell and Justice Brennan — the latter being joined by Justices White, Marshall and Blackmun— concluded that Title VI incorporates the Constitution’s proscription against race discrimination. 438 U.S. at 281-287, 328-355, 98 S.Ct. at 2767. Indeed, Justice Brennan concluded that “Congress intended the meaning of the statute’s prohibition to evolve with the interpretation of the commands of the Constitution.” Id. at 340, 98 S.Ct. at 2773. The potential implications of this analysis on the continued vitality of Lau was acknowledged by Justice Brennan:" }, { "docid": "768676", "title": "", "text": "281-287, 98 S.Ct. at 2744-2746 (Powell, J.); Id., at 328-355, 98 S.Ct. at 2768-2781 (Brennan, J., joined by White, Marshall, and Blackmun, JJ.). Those constitutional provisions, in turn, have been construed to reach only purposeful discrimination. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 299, 96 S.Ct. 2040, 48 L.Ed.2d 597; Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. It thus follows from Bakke that Title VI prohibits only purposeful discrimination. Id. 100 S.Ct. at 379. Plaintiffs attempt to minimize the import of these opinions by characterizing them as “confusing dicta.” They are not so easily dismissed. They appear to represent the views of at least seven Justices. The reasoning underlying these “dicta,” moreover, and in particular Justice Brennan’s penetrating analysis of the legislative history Title VI, strongly indicate that the Court will find that the standard of discrimination under Title VI has evolved, and was intended to evolve, parallel to the standard embodied in the equal protection clause. At present this standard is one of discriminatory motive, as described above. The legislative history cited by plaintiffs to avoid this conclusion is at best ambiguous. It does seem as plaintiffs argue, that Congress was worried that grants of federal funds might “result” in discrimination. But as Justices Powell and Brennan point out in Bakke, Congress left “discrimination” undefined. “Result” in the statutory context merely modifies “discrimination,” which in turn can readily be construed to require that federal funds should not be used to facilitate race-conscious deprivations. Even Senator Humphrey’s opinion, quoted by plaintiffs, that the scope of coverage of Title VI extended beyond the scope of the Constitution, is of little value here. Senator Humphrey appeared to be concerned with cases in which insufficient state action existed to invoke the Constitution. He was not concerned with whether Title Vi’s standard for defining illegal discrimination, even in purely private endeavors, is parallel to that" }, { "docid": "8098917", "title": "", "text": "alike to the ESAA and Title VI. When addressing the majority’s argument that the legislative history of § JOB of the ESAA, the so-called Stennis Amendment, indicated that the section was to impose only the disparate-impact test, Justice Stewart stated: My difficulty with this reasoning stems from the fact that the Stennis Amendment is applicable not only to ESAA, but also to Title VI of the Civil Rights Act of 1964, and the latter has been construed to contain not a mere disparate-impact standard, but a standard of intentional discrimination. In University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, five members of the Court concluded that Title VI, which prohibits discrimination in federally funded programs, prohibits only discrimination violative of the Fifth Amendment and the Equal Protection Clause of the Fourteenth. Id. at 281-287, 98 S.Ct. at 2743-2746 (Powell, J.); id. at 325-355, 98 S.Ct. at 2766-2781 (Brennan, J., White, Marshall, and Blackmun, J.J.). Those constitutional provisions, in turn, have been construed to reach only purposeful discrimination. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. It thus follows from Bakke that Title VI prohibits only purposeful discrimination. Id. 444 U.S. at 159-60, 100 S.Ct. at 379-80, and see id. at 162, 100 S.Ct. at 380. It would seem from the above quoted language that seven of the Justices of the Supreme Court support the view that a violation of Title VI requires intentional discrimination. We agree that this is the better view and other courts are in accord. In Parents Association of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir. 1979), for example, the court noted that at least in school discrimination cases, Title VI should be held to impose the intentional discrimination standard. The court distinguished its" } ]

[ { "docid": "17558910", "title": "", "text": "of the insolvent corporation was required to pay federal income taxes despite his claim that he was not operating the property or business. The business of the insolvent corporation had been, principally, the collection of rent. For a short period the receiver collected the rent and then he liquidated the entire estate after only a few months had passed. He was required to pay taxes on the income from the rents as well as capital gains from the sale of all the assets of the insolvent corporation. See also In re Loehr, D.C., 98 F.Supp. 402, 403. Both the above eases distinguished In re Owl Drug Co., D.C., 21 F.Supp. 907, cited by the District Court in support of its decision. In the Owl case, the business had been sold by the trustee previously, and the only income received was interest from the proceeds of the sale. Phrases such as “carrying on or doing business,” similar to that contained in Section 52, are found in other revenue acts and have been interpreted broadly to include liquidating activities. Magruder v. Washington, Baltimore & Annapolis Realty Corp., 316 U.S. 69, 62 S.Ct. 922, 86 L.Ed. 1278; Kettleman Hills Royalty Syndicate No. 1 v. C. I. R., 9 Cir., 116 F.2d 382. Regulations interpreting such phrases in the statute to include these liquidating activities have been upheld. Magruder v. Washington, Baltimore & Annapolis Realty Corp., supra. The District Court was clearly in error in failing to find that the Trustee was operating the business or property of the corporation and was required to file an income tax return and pay the tax therein under Section 52 of the 1939 I.R.C. for the years 1952 and 1953. Under the 1954 I.R.C., the pertinent section is Section 6012(b) (3) which governs the returns for 1954 and 1955. “In a case where a receiver, trustee in bankruptcy, or assignee, by order of a court of competent jurisdiction, by operation of law or otherwise, has possession of or holds title to all or substantially all the property or business of a corporation, •whether or not such property" } ]

[ { "docid": "15282285", "title": "", "text": "an individual Chapter 7 estate to the § 121 exclusion. See In re Popa, 218 B.R. 420 (Bankr.N.D.Ill.1998); see also In re Munster, Case No. 97-51313-293, slip op. (Bankr.E.D.Mo. June 12, 1998) (sustaining Chapter 13 trustee’s objection to confirmation on ground that best interests of creditors test includes gain on sale of debtors’ residence available to Chapter 7 trustee pursuant to I.R .C. § 121). As explained by Judge Barliant in Popa: The authority for the estate’s use of the § 121 IRC exclusion is provided by [I.R.C. § 1398]. Subsection (g)(6) provides that the estate succeeds to the Debtor’s holding period. If the debtor has owned the property for the time required in § 121 IRC, the estate succeeds to that holding period. Next, § 1398(g)(6) provides that the estate succeeds to the “character” of the asset “it had in the hands of the debtor.” “Character” is not defined by § 1398 IRC, but the characteristics of the Property relevant to the tax code include its use as a principal residence for at least two of the past five years. Those attributes constitute the “character it had in the hands of the debt- or.” Because the estate succeeds to those attributes, it qualifies to use the § 121 I.R.C. exclusion. This conclusion is also compelled by §§ 1398(c)(1) and (f)(1). Subsection (c)(1) says that an estate is taxed like an individual. Subsection (f)(1) says that the transfer of property from the debtor to the estate is not a disposition for tax purposes, and “the estate shall be treated as the debtor would be with respect to such asset.” When those provisions are read with subsection (g)(6), the only plausible conclusion is that the estate is liable for the same tax, and entitled to the same exclusion, as the debtor would be on the sale of the Property. Popa, 218 B.R. at 426 (footnote omitted). Popa declined to follow two pre-1997 decisions that denied use of the § 121 exclusion by a bankruptcy estate. See In re Barden, 205 B.R. 451 (E.D.N.Y.1996), aff'd mem., 105 F.3d 821 (2d Cir.1997) (per" }, { "docid": "10003481", "title": "", "text": "allow for the § 121 election to be taken by the estate. Absent specific authority by the Code to enable a Trustee to utilize such election, this Court clearly cannot permit such an election to be taken. Mehr, supra, 153 B.R. at 438. In other words, [U]nless the Secretary of the Treasury has enacted regulations adding particular tax attributes to the list set forth in section 1398(g), the courts are not empowered to read such additional attributes into the statute. The statute is clear. It contemplates a specific administrative procedure to enlarge the list of federal tax attributes that pass to estates in bankruptcy. In re Rueter, 158 B.R. 163, 167 (N.D.Cal.1993) (citing In re Antonelli, 92-2 USTC ¶ 50,619, at 86,176-77, 1992 WL 403097 (Bankr.D.Md.1992); DiStasio v. U.S. 22 Cl. Ct. 36, 50, 52 (1990); and Mehr, supra). The Court declines to interpret Section 1398 so as to entitle the bankruptcy estate to succeed to a qualified debtor’s capital gain exclusion under Section 121 in the absence of language to that effect in the statute itself. As the United States points out in its brief, Congress chose to enumerate those specific attributes to which the bankruptcy estate succeeds rather than providing for the estate to succeed to all tax attributes of the debtor. The Court can only conclude that if Congress or the Secretary of the Treasury had intended for a bankruptcy estate to succeed to an eligible debtor’s Section 121 exclusion, then they would have taken the opportunity to say so in the statute or the regulations. The Trustee has not identified a provision in the Tax Code that unambiguously authorizes a bankruptcy estate to exclude the capital gain realized on the sale of the debtor’s residence from the estate’s income. See Payne, supra, 778 F.Supp. at 808. Rather, his arguments rely on analogy and implication. In the Court’s view, the Bankruptcy Court ruled correctly that the Trustee was not entitled to make an election pursuant to 26 U.S.C. § 121 for the benefit of the bankruptcy estate. D. Stepped up basis The Trustee also argues that the" }, { "docid": "10003483", "title": "", "text": "Bankruptcy Court erred in not permitting the bankruptcy estate to receive a “stepped up” basis in the debtors property “akin to that allowed in the laws related to decedent’s [sic] estates.” Appellant’s Brief at 6. The Tax Code provides that the basis of property in the hands of a person acquiring the property from a decedent is the fair market value at the date of the decedent’s death. 26 U.S.C. § 1014. As discussed above, the Tax Code specifically provides that the debtor’s basis is transferred to the bankruptcy estate, where the transfer is not a sale or exchange. See 26 U.S.C. § 1398(g)(6). Section 1398(f) provides, TREATMENT OF TRANSFERS BETWEEN DEBTOR AND ESTATE.— (1) TRANSFER TO ESTATE NOT TREATED AS DISPOSITION. — A transfer (other than sale or exchange) of an asset from the debtor to the estate shall not be treated as a disposition for purposes of any provision of this title assigning tax consequences to a disposition, and the estate shall be treated as the debtor would be treated with respect to such asset. 26 U.S.C. § 1398(f)(1). A bankruptcy estate’s succession to property by the filing of a bankruptcy petitions is not considered a taxable event, therefore the estate receives the debtor’s basis in the property. See In re Kochell, 804 F.2d 84, 87 (7th Cir.1986); see also In re Young, 153 B.R. 886, 887 (Bankr.D.Neb.1993) (“[t]he Chapter 7 bankruptcy estate succeeds to the debtor’s tax attributes pursuant to the Internal Revenue Code § 1398(g). The Trustee thus succeeds to the debtors’ basis in property.”). To support his argument for a “stepped up” basis, the Trustee draws the Court’s attention to the case of In re Rasmussen, 95 B.R. 657 (Bankr.W.D.Mo.1989). In Rasmussen, the court approved a stipulated settlement between the Chapter 7 Trustee and the Internal Revenue Service with regard to the estate’s taxes. The court set forth a lengthy policy discussion, which concludes that considerations of “fairness of reality” favor a stepped up basis in the debtor’s property for the estate, so that the unsecured creditors do not bear the burden of the debtor’s" }, { "docid": "10003485", "title": "", "text": "tax liability. The court reasoned, “Exchange” is standardly defined by deci-sional authority as a transfer for any form of tangible property or intangible value. The definition may be sufficiently general and expansive to require a holding that, when debtors transfer property to their bankruptcy estate, receiving a return in discharge of the debts which they owe creditors in amounts which ordinarily equal or exceed the value of the property transferred, it is a transfer by “exchange” — the discharge of a pre-existing debt for the transfer of the property. Id. at 659. The Rasmussen court proposed an interpretation of Section 1398(f) that would grant the taxing authority a lower priority claim than that of unsecured creditors. The court voiced concern that in cases where the tax liability exceeds the amount of money on hand in the estate, not only would unsecured creditors go unpaid, but the trustee might bear individual responsibility for the debtor’s nondischargeable tax liability. Id. The Rasmussen approach is characterized by a certain fairness and logic, especially from a creditor’s point of view. However, it is stated in the context of a settlement, not a holding, and this Court is aware no others that have adopted its “proposed interpretation” of section 1398(f). As another court observed, “a court is not free to ignore the law merely because it perceives the law as unfair or ill-eonceived. This rule is no less applicable to a bankruptcy court than to any other court.” In re Card, 114 B.R. 226, 228 (Bankr.N.D.Cal.1990). In Card, the court also noted the following: By imposing the capital gains tax on the bankruptcy estate as an expense of administration, liability for the tax is shifted from the debtor to the creditor. For this reason several courts in prior years ruled that a liquidating estate was not liable for such taxes. See, e.g., In re Statmaster Corp. (S.D.Fla.1971) 332 F.Supp. 1248, 1260; In re F.P. Newport Corp. (C.D.Cal.1956) 144 F.Supp. 507. However, the policy of collecting revenue overcame the policy of doing equity to creditors. Higher courts ruled that a liquidating trustee in bankruptcy is in" }, { "docid": "18524003", "title": "", "text": "remaining from the sale of the property. The debtors object, and demand the entire balance to satisfy their claimed exemption. After researching the sparse case law addressing this issue, we find the bankruptcy court’s decision in In re Lambdin, 11 B.C.D. 103, 33 B.R. 11 (Bankr.M.D.Tenn.1983) to be persuasive, and adopt the reasoning and findings made therein. Notwithstanding the Trustee’s argument to the contrary, the legislative history of § 503(b) makes clear that capital gains taxes are obligations incurred by the estate, and constitute administrative expenses, which have first priority status under § 507(a)(1). “[AJdministrative expenses include taxes which the trustee incurs in administering the debtor’s estate, including taxes on capital gains from sales of property by the trustee and taxes on income earned by the estate during the case.” (S.Rep. No. 989, 95th Cong., 2nd Sess. 66 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5852). We also agree with Judge Paine’s holding in Lambdin regarding the inability of the Trustee to invade the debtors’ exempt property claim. Since § 522(k) specifically prohibits the payment of administrative expenses from the proceeds of the sale of a debtor’s exempt property (except in two isolated instances not applicable here), the Trustee is directed to pay the debtors their full exemption, after receiving back the taxes paid to the IRS and the Rhode Island Division of Taxation. See, e.g., In re Reich, 54 B.R. 995, 1002 (Bankr.E.D.Mich.1985). After paying debtors’ exemption, any remaining funds shall be used to pay administrative expenses, including capital gains taxes and Trustee’s fees, on a pro rata basis. In re Lambdin, supra, at 104. During oral argument, the Trustee raised the issue of the debtors’ waiver of their right to object to the payment of the taxes in question. While the point appears to have merit, our interpretation of § 503(b) as including capital gains taxes as an estate administrative expense obviates any need to consider the waiver issue, since payment of the capital gains taxes were not the debtors’ obligation. Enter Judgment accordingly. .11 U.S.C. § 522(k) provides: (k) Property that the debtor exempts under this" }, { "docid": "10003468", "title": "", "text": "Barden also had $34,000.00 in unsecured debt at the time of the filing. Upon the filing of the bankruptcy petition, the debtor’s interest in the real property became the property of the bankruptcy estate. 11 U.S.C. § 541. The Bellport residence was sold by the Chapter 7 Trustee on February 28, 1994 for the sum of $101,500.00. The two mortgages were satisfied from the proceeds of the sale, and a capital gain of $46,695.00 was realized, which includes the debtor’s $10,000.00 homestead exclusion pursuant to Section 522 of the Bankruptcy Code. The Trustee brought a motion in the Bankruptcy Court to determine the tax liability of the estate. In that motion the Trustee argued that the estate should be entitled to exclude the gain on the sale of the Bellport residence from income under Section 121 of the Internal Revenue Code, which provides a one-time capital gain exclusion to individuals over the age of 55 who realize up to $125,-000.00 on the sale of a primary residence. Both the federal and New York State taxing authorities opposed the Trustee’s use of this exclusion. Under New York tax law, a resident taxpayer’s adjusted gross income is the same as the taxpayer’s federal adjusted gross income (subject to certain modifications that are not relevant to this appeal), which means that the federal exclusion is also applicable to the taxpayer’s income for state tax purposes. The Trustee appeals from the December 7, 1994 Bankruptcy Court decision, which denied his motion to use the Section 121 onetime exclusion for the benefit of the bankruptcy estate. In this appeal, the Trustee argues that the bankruptcy estate should be entitled to utilize the debtor’s exemption or, in the alternative, that the bankruptcy estate should succeed to a “stepped up” basis in the residence in order to maximize the distribution to the debtor’s unsecured creditors. II. DISCUSSION A. Standard of review Findings of fact made by the bankruptcy court are reviewed by the district court on appeal under a clearly erroneous standard and conclusions of law are reviewed de novo. U.S.C. Bankr.R. 8013; In re Momentum Manufacturing," }, { "docid": "15164545", "title": "", "text": "addresses the tax attributes of the debtor to which the estate succeeds. The In re Bradley court concludes that the capital gain exclusion is not a tax attribute. See 222 B.R. at 317. We respectfully disagree. The term “tax attribute” is undefined in the I.R.C. We believe that a tax attribute is simply a legal construct that flows from a certain series of events. Because of the unique series of events that are conditions precedent to the I.R.C. § 121 capital gain exclusion — that the property must have been used by the taxpayer as a residence for a certain period of time — we find that the capital gain exclusion of I.R.C. § 121 is not available to the estate. Although it may appear unfair to the unsecured creditors for the trustee to bypass the sale of a debtor’s residence because of the trustee’s need to pay the capital gain tax and other expenses associated with the sale, it is not within the purview of this Court to rewrite the Internal Revenue Code. See In re Mehr, 153 B.R. at 438; In re Barden, 205 B.R. at 455-56. For the reasons set forth above, we find that the Trustee may not exclude the capital gain from the sale of the Debtors’ residence under I.R.C. § 121. The Trustee is left with the business decision of whether to sell the Debtors’ residence under these circumstances. IT IS SO ORDERED. . The Court does not make a finding of the actual fair market value of the property because such a factual finding is not necessary to the determination of the legal issue before the Court. . The Court notes that this issue would not arise in states with an unlimited homestead exemption. .The Trustee calculated this tax amount using a sale price of $95,000 and a cost basis of $58,900. . The Trustee contends that not selling the house allows the Debtors to “walk away with approximately $30,000 worth of equity.” Doc. 19, p. 2. This contention is somewhat misleading since the $30,000 amount is composed of the Debtors' $10,000 exemption," }, { "docid": "18524002", "title": "", "text": "ORDER ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge. On February 23, 1989, a hearing was held on the Trustee’s petition for instructions regarding the payment of administrative expenses in the amount of $1,875, and the debtors’ objection thereto. The specific issues presently before the Court are: (1) whether the payment of these administrative expenses infringe on the debtors exemption, in violation of 11 U.S.C. § 522(k); and (2) whether the Trustee’s payment of a capital gains tax from the sale of the debtors’ real estate is considered an administrative expense pursuant to § 503(b)(1)(B), or a seventh priority unsecured claim of a governmental unit, under § 507(a)(7)(A)(iii). In administering this Chapter 7 case, the Trustee sold the debtors’ real estate, paid off a first mortgage and an IRS lien on the real property, and filed a fiduciary return and paid taxes to the IRS and the Rhode Island Division of Taxation for the capital gain realized from the sale of the debtors’ property. The Trustee now seeks to deduct administrative expenses, totalling $1,875, from the $11,477.72 remaining from the sale of the property. The debtors object, and demand the entire balance to satisfy their claimed exemption. After researching the sparse case law addressing this issue, we find the bankruptcy court’s decision in In re Lambdin, 11 B.C.D. 103, 33 B.R. 11 (Bankr.M.D.Tenn.1983) to be persuasive, and adopt the reasoning and findings made therein. Notwithstanding the Trustee’s argument to the contrary, the legislative history of § 503(b) makes clear that capital gains taxes are obligations incurred by the estate, and constitute administrative expenses, which have first priority status under § 507(a)(1). “[AJdministrative expenses include taxes which the trustee incurs in administering the debtor’s estate, including taxes on capital gains from sales of property by the trustee and taxes on income earned by the estate during the case.” (S.Rep. No. 989, 95th Cong., 2nd Sess. 66 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5852). We also agree with Judge Paine’s holding in Lambdin regarding the inability of the Trustee to invade the debtors’ exempt property claim. Since § 522(k) specifically prohibits the" }, { "docid": "8336821", "title": "", "text": "because this debtor is more than 55 years of age (in fact, he is 73 and his wife is 69) and because he could elect (under 26 U.S.C. § 121) to exclude up to $125,000 of his aggregate capital gains in a sale of his residence, a Chapter 7 trustee could make this election for the debtor. Consequently, the Chapter 7 test must reflect the fact that the value of the capital gains tax would go to creditors and not to the Internal Revenue Service. As to the scope of application of the decision of the District Court in Wilk and of the case of Hunter Press v. Conn. Bank & Trust, 420 F.Supp. 338 (D.C.Conn.1976) (cited by counsel), suffice it to say that those cases are apt authority for looking only to market price, without deduction for costs of sale, when dealing with many of the provisions of the Bankruptcy Code which, like § 522(f), require the Court to determine the “value” of property. Here it is agreed that the value of the debtor’s home is $100,000. The dispute does not involve the “value” of anything. What is at issue is the amount that creditors would ultimately receive if this home were sold for $100,000 in a Chapter 7 case concerning this debtor. Thus Wilk and similar cases are inappo-site, and it is appropriate to rely upon the plain language of § 1325(a)(4) and cases clearly upholding a Chapter 13 debtor’s entitlement to credit for certain liquidation expenses in applying § 1325(a)(4). These include such cases as In re Rivera, 116 B.R. 17 (Bankr.P.R.1990) (“[T]he debtor is entitled to deduct from any apparent equity, the costs of Chapter 7 liquidation including likely administration expenses, i.e. trustees, brokers, appraisers, auctioneers and attorneys.”) (dictum); In re Wilheim, 29 B.R. 912 (Bankr.D.N.J.1983) (6% cost-of-sale expense approved for expenses “such as appraisal fees, trustee’s fees and real estate or auctioneer’s commissions normally incurred in a Chapter 7 liquidation proceeding.”) (But debtor’s requested 8% figure “exceeds the norm.”); and In re Card, 114 B.R. 226 (Bankr.N.D.Cal.1990) (“In determining what the Chapter 7 dividend would" }, { "docid": "15164542", "title": "", "text": "The fact that I.R.C. § 1398(g) was not amended as a conforming amendment along with the changes to I.R.C. § 121 in the Taxpayer Relief Act of 1997 affords an even stronger argument that the estate should not succeed to the capital gain exclusion available to the individual taxpayer. The court in In re Popa reasoned that since under I.R.C. § 1398(g)(6) the estate succeeds to the “character” of the asset in the hands of the debtor, the estate may be said to have used the property as a principal residence for at least two of the last five years. 218 B.R. at 426. We respectfully disagree. This Court reasons that it takes more than one general word in I.R.C. § 1398(g)(6) to open the door so widely to the I.R.C. § 121 exclusion. This conclusion is supported by the rule that exclusions are to be strictly construed against the taxpayer and the rule that the taxpayer must point to the specific provision of the tax code which authorizes an exclusion. See In re Mehr, 153 B.R. at 432-33. Furthermore, under In re Popa’s broad interpretation of the term “character” in I.R.C. § 1398(g)(6), the estate would succeed to every tax attribute of the debtor and there would have been no reason for Congress to specify the attributes it did so specify in I.R.C. § 1398(g)(1) through (g)(5) or to allow for the Secretary to prescribe additional tax attributes as provided in I.R.C. § 1398(g)(8). As we interpret I.R.C. § 1398(g)(6), that subsection is to insure that when the estate pays a tax or is otherwise properly allowed a tax “break” that the tax or tax “break” is properly calculated. See In re Perlman, 188 B.R. 704, 708 (Bankr. S.D.Fla.1995). In In re Kochell, 804 F.2d 84 (7th Cir. 1986), the Seventh Circuit held that the bankruptcy estate rather than the debtor was responsible for paying the penalty tax for the trustee’s early withdrawal of the debtor’s IRA. Contrary to the Court in In re Popa, we find that In re Kochell is inapplicable to the issue at hand. First," }, { "docid": "10003487", "title": "", "text": "fact liable for capital gains tax on the sale of estate assets. U.S. v. Sampsell, 266 F.2d 631 (9th Cir.1959); In re I.J. Knight Realty Corp., 501 F.2d 62 (3d Cir.1974). The current law is that the trustee in a Chapter 7 case must both honor the debtor’s homestead exemption and pay the capital gains tax when he sells the debtor’s residence. In re Duby, 98 B.R. 126 (Bankr.D.R.I.1989); In re Lambdin, 33 B.R. 11 (Bankr.M.D.Tenn.1983). Id. at 227-28. The Trustee has provided no legal authority for the proposition that he should receive a “stepped up” basis in the debtor’s property. Indeed the argument he advances is contrary to the plain language of the Section 1398(g) of the tax, which provides that bankruptcy estate shall succeed to the debtor’s basis in any asset acquired from the debtor (other than by sale or exchange). 26 U.S.C. § 1398(g)(6). Accordingly, the Bankruptcy Court correctly determined that the estate’s basis in the real property is that of the debtor. III. CONCLUSION Based on the foregoing, the December 7, 1994 Order of United States Bankruptcy Judge Francis G. Conrad is affirmed. The Clerk of the Court is advised that this Order closes the case. SO ORDERED." }, { "docid": "10003484", "title": "", "text": "such asset. 26 U.S.C. § 1398(f)(1). A bankruptcy estate’s succession to property by the filing of a bankruptcy petitions is not considered a taxable event, therefore the estate receives the debtor’s basis in the property. See In re Kochell, 804 F.2d 84, 87 (7th Cir.1986); see also In re Young, 153 B.R. 886, 887 (Bankr.D.Neb.1993) (“[t]he Chapter 7 bankruptcy estate succeeds to the debtor’s tax attributes pursuant to the Internal Revenue Code § 1398(g). The Trustee thus succeeds to the debtors’ basis in property.”). To support his argument for a “stepped up” basis, the Trustee draws the Court’s attention to the case of In re Rasmussen, 95 B.R. 657 (Bankr.W.D.Mo.1989). In Rasmussen, the court approved a stipulated settlement between the Chapter 7 Trustee and the Internal Revenue Service with regard to the estate’s taxes. The court set forth a lengthy policy discussion, which concludes that considerations of “fairness of reality” favor a stepped up basis in the debtor’s property for the estate, so that the unsecured creditors do not bear the burden of the debtor’s tax liability. The court reasoned, “Exchange” is standardly defined by deci-sional authority as a transfer for any form of tangible property or intangible value. The definition may be sufficiently general and expansive to require a holding that, when debtors transfer property to their bankruptcy estate, receiving a return in discharge of the debts which they owe creditors in amounts which ordinarily equal or exceed the value of the property transferred, it is a transfer by “exchange” — the discharge of a pre-existing debt for the transfer of the property. Id. at 659. The Rasmussen court proposed an interpretation of Section 1398(f) that would grant the taxing authority a lower priority claim than that of unsecured creditors. The court voiced concern that in cases where the tax liability exceeds the amount of money on hand in the estate, not only would unsecured creditors go unpaid, but the trustee might bear individual responsibility for the debtor’s nondischargeable tax liability. Id. The Rasmussen approach is characterized by a certain fairness and logic, especially from a creditor’s point of" }, { "docid": "19072967", "title": "", "text": "sale of an estate asset. Section 121 IRC, however, allows a taxpayer to exclude up to $250,000 of gain from the sale of the taxpayer’s primary residence every two years, if the taxpayer has owned and lived in the residence two of the preceding five years. The dispute is whether the estate (and therefore the creditors) can take advantage of that exclusion. Section 121 has recently been amended. The “Original § 121” provided that taxpayers over 55 years of age were entitled to a onetime exclusion of $125,000 on the sale of the taxpayer’s residence if the taxpayer had used the property as his or her principal residence for three of the last five years. No case has addressed the issue of whether a bankruptcy estate qualifies for the exclusion under the current § 121. The two cases that addressed this issue under Original § 121, however, both concluded that a bankruptcy trustee could not use the exclusion. In re Mehr, 153 B.R. 430 (Bankr.D.N.J.1993); In re Barden, 205 B.R. 451 (E.D.N.Y.1996), aff'd, 105, F.3d 821 (2nd Cir.1997). For the reasons discussed below this Court declines to follow the Mehr and Barden decisions and instead finds that a bankruptcy trustee is eligible to use the § 121 IRC exclusion. The guidelines for the taxation of a Chapter 7 bankruptcy estate are in 26 U.S.C. § 1398 (“§ 1398 IRC”). The following subsections are relevant to the current analysis: (c) Except as otherwise provided by this section, the taxable income of the [Chapter 7 bankruptcy] estate shall be computed in the same manner as for an individual. The tax shall be computed on such taxable income and shall be paid by the trustee. (f)(1) A transfer (other than by sale or exchange) of an asset from the debtor to the estate shall not be treated as a disposition for purposes of any provision of this title assigning tax consequences to a disposition, and the estate shall be treated as the debtor would be with respect to such asset. (g) Estate Succeeds to Tax Attributes of Debtor. — The estate shall succeed" }, { "docid": "4363888", "title": "", "text": "are surprisingly few reported cases addressing whether capital gains taxes arising from postpetition sales are administrative expenses. The Court speculates that this is because the construction of § 503(b)(l)(B)(i) to include such taxes is so well accepted. The Court’s research has revealed the following cases where capital gains taxes from postpetition sales in Chapter 7 and Chapter 11 cases have been held to be administrative expenses. In re Goffena, 175 B.R. 386, 391 (Bankr.D.Mont.1994) (holding the tax liability incurred by the estate due to the Chapter 7 Trustee’s sale of real property is an administrative expense pursuant to § 503(b)(1)(B)); In re Swann, 149 B.R. 137, 144-45 (Bankr.D.S.D.1993) (holding capital gains taxes arising from Chapter 7 Trustee’s § 363 sale of secured property is an administrative expense); and In re Scott Cable Communications, 227 B.R. 596, 600 (Bankr.D.Conn.1998) (Chapter 11 Debtor conceded that capital gains tax that accrues during the administration of the case is an administrative expense under § 503(b)(1)(B)). . 4 Collier on Bankruptcy ¶ 503.07[1]; see United Mine Workers of Amer.1992 Benefit Plan v. Rushton (In re Sunnyside Coal Co.), 146 F.3d 1273 (10th Cir.1998) (holding that in a voluntary corporate Chapter 11 case, liability under the Coal Act arising postpetition constituted taxes incurred by the estate). . See 3 Norton Bankruptcy Law & Practice 3rd § 49:21 (Norton, auth & ed.-inchief 2008) (noting legislative history in support of the broad interpretation of which taxes are entitled to administrative status and citing cases holding capital gains taxes arising from sale of property during administration of the estate are administrative expenses); and 4 Collier on Bankruptcy § 503.07[2][a] (stating it is clear that any taxes measured by the income earned postpetition will be administrative expenses of the debtor, but noting that some taxes on income earned prepetition may also be entitled to administrative expenses treatment depending upon when the tax year ends for a particular debtor under the various bankruptcy chapters). . 517 U.S. 535, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996). .In re Scott Cable Communications, Inc., 227 B.R. at 600, (sustaining IRS' objection to confirmation for" }, { "docid": "10003486", "title": "", "text": "view. However, it is stated in the context of a settlement, not a holding, and this Court is aware no others that have adopted its “proposed interpretation” of section 1398(f). As another court observed, “a court is not free to ignore the law merely because it perceives the law as unfair or ill-eonceived. This rule is no less applicable to a bankruptcy court than to any other court.” In re Card, 114 B.R. 226, 228 (Bankr.N.D.Cal.1990). In Card, the court also noted the following: By imposing the capital gains tax on the bankruptcy estate as an expense of administration, liability for the tax is shifted from the debtor to the creditor. For this reason several courts in prior years ruled that a liquidating estate was not liable for such taxes. See, e.g., In re Statmaster Corp. (S.D.Fla.1971) 332 F.Supp. 1248, 1260; In re F.P. Newport Corp. (C.D.Cal.1956) 144 F.Supp. 507. However, the policy of collecting revenue overcame the policy of doing equity to creditors. Higher courts ruled that a liquidating trustee in bankruptcy is in fact liable for capital gains tax on the sale of estate assets. U.S. v. Sampsell, 266 F.2d 631 (9th Cir.1959); In re I.J. Knight Realty Corp., 501 F.2d 62 (3d Cir.1974). The current law is that the trustee in a Chapter 7 case must both honor the debtor’s homestead exemption and pay the capital gains tax when he sells the debtor’s residence. In re Duby, 98 B.R. 126 (Bankr.D.R.I.1989); In re Lambdin, 33 B.R. 11 (Bankr.M.D.Tenn.1983). Id. at 227-28. The Trustee has provided no legal authority for the proposition that he should receive a “stepped up” basis in the debtor’s property. Indeed the argument he advances is contrary to the plain language of the Section 1398(g) of the tax, which provides that bankruptcy estate shall succeed to the debtor’s basis in any asset acquired from the debtor (other than by sale or exchange). 26 U.S.C. § 1398(g)(6). Accordingly, the Bankruptcy Court correctly determined that the estate’s basis in the real property is that of the debtor. III. CONCLUSION Based on the foregoing, the December 7," }, { "docid": "18557258", "title": "", "text": "to consider the significance of that omission, since it plainly appears that the interest income at issue here was not generated as a result of the “[conduct of] any business” by the trustee. Section 960 has been held applicable to a liquidating, as well as an operating, trustee. In re Mid America Co., 31 F.Supp. 601, 606 (S.D.I11.1939). The retention of employees of the bankrupt by a liquidating trustee, though operation of the business of the bankrupt was not expressly authorized by the bankruptcy court, may bring the trustee within section 960, particularly if the trustee is engaged in “winding down” the business. Id. Similarly, In re Loehr required the liquidating trustee of an individual bankrupt to pay federal and state taxes on income from the sale of real estate, where the debtor had been engaged in the real estate business prior to bankruptcy. The trustee continued real estate sales for three years. The court held the liquidating trustee in bankruptcy liable as though the income had been realized from on-going business operations of the debtor. 98 F.Supp. at 403. No court has held a true liquidating trustee subject to federal income taxation under 28 U.S.C. § 960. See In re 4100 North High Ltd., 3 B.R. 232 (Bkrtcy.S.D. Ohio B.J.1980); In re F. P. Newport Corp. Ltd., 144 F.Supp. 507 (S.D.Cal.1956); In re Owl Drug, 21 F.Supp. 907 (D.Nev.1937). When the trustee is ordered to liquidate, ceases business operations and converts the assets into cash for distribution among creditors, he is not “conducting any business” and is not within the scope of section 960. In re F. P. Newport Corp., Ltd., supra at 509. These authorities are not inconsistent with those holding that income realized by a trustee engaged in converting the assets of the estate into cash, by means other than a “wind-down” operation, is not taxable under section 960, see, e. g., In re F. P. Newport Corp. Ltd., supra; In re 4100 North High Ltd., supra. Conserving the assets of the estate pending their distribution does not constitute “conducting any business.” In re New York, New" }, { "docid": "5406503", "title": "", "text": "amended or supplemental fee applications by May 30, 1997. The hearing on the amended final account and allowance of compensation shall be set for September 17,1997, with the deadline for any objections to the said motions, including requests for disgorgement, set for September 5,1997. Motions by any party in interest seeking to compel the production of documents or testimony from the Trustee shall be filed on or before July 1, 1997. . However, the Debtor appealed Judge Queen-art’s 1988 order granting the Trustee leave to compromise the claim, and that order was affirmed by the District Court. See In re Anolik, 107 B.R. 426 (D.Mass.1989). . Those taxes described in § 507(a)(8) (numbered § 507(a)(7) as of case commencement) are excluded. No such tax is involved here. . It is well-established that capital gains taxes incurred by a Chapter 7 trustee in liquidating an estate are administrative expenses under § 503(b)(l)(B)(i). See United States v. Federal Deposit Ins. Corp., 899 F.Supp. 50, 56-57 (D.R.I.1995); In re Duby, 98 B.R. 126, 128 (Bankr.D.R.I.1989); In re Lumara Foods of America, Inc., 50 B.R. 809, 816 (Bankr.N.D.Ohio 1985); In re Lambdin, 33 B.R. 11, 12 (Bankr.M.D.Tenn.1983); see abo S.Rep. No. 989, 95th Cong., 2nd Sess. 66 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5852 (\"In general, administrative expenses include taxes which the trustee incurs in administering the debtor's estate, including taxes on capital gains from sales of property by the trustee... .”). . Pro rata distribution is subject to the exception that when a case is converted from Chapters 11, 12, or 13 to Chapter 7, the Chapter 7 administrative expenses have priority over the other administrative expenses. See § 726(b). .See In re Kaiser Steel Corp., 74 B.R. 885, 891 (Bankr.D.Colo.1987) (\"Certainly, it is clear that if some administrative expenses are paid on an interim basis and it is ultimately determined that there will be insufficient funds to similarly pay all other administrative claims, those who have received interim payments may be required to disgorge funds so that all administrative claims share pro rata.”); see also In re Evangeline Ref. Co., 890 F.2d" }, { "docid": "11182387", "title": "", "text": "thus presented. When the Code requires that a hypothetical chapter 7 liquidation be conjured up, does it mean a hypothetical liquidation based upon pure mathematical calculations? This Court will rely on the plain meaning of the words of the statute. Section 1324(a)(4) requires a comparison of “the value ... to be distributed under the plan” with the “amount that would be paid ... under chapter 7.” [Emphasis added]. Case law and treatises alike indicate that we are not to just mechanically determine the amount of the nonexempt equity and use that as the “amount that would be paid.” Rather we must reduce that amount by the anticipated chapter 7 administrative expenses and by the anticipated- costs of sale. See, e.g., In re Barth, 83 B.R. 204 (Bankr.D.Conn.1988). In addition, we must now take into consideration a hypothetical capital gains tax that would be payable by a chapter 7 trustee. In re Card, 114 B.R. 226 (Bankr.N.D.Cal.1990). Thus, it follows, that we must go the next step and determine what a hypothetical chapter 7 Trustee would do when faced with a property that would bring no net gain to the estate if it were liquidated. As stated by Collier: The determination regarding what property creditors would receive in a liquidation should also take into account the administrative expenses that would be incurred in a chapter 7 case. In nominal asset cases, when the debtor’s nonexempt assets do not exceed one thousand dollars or so and administrative expenses would consume all or virtually all of those assets, most courts would discourage a chapter 7 trustee from administering the estate at all, so unsecured creditors would receive no distributions. It follows, then that in nominal asset chapter 13 cases, the unsecured creditors are entitled to no minimum amount of payments under section 1325(a)(4). 5 Collier On Bankruptcy ¶ 1325.05[d] (15th ed. 1995). Debtors bring forth the proverbial “parade of horrors” by arguing that if we separate the assets on a piecemeal basis and only select those assets where there will be a positive net amount after deductions for exemptions, administrative expenses, costs of" }, { "docid": "11182386", "title": "", "text": "in that residence. The Debtors own personal property valued at $14,923. The Debtors have properly claimed various Colorado exemptions totaling $9,724. This leaves $5,199 of nonexempt equity in the personal property. If all of the real and personal property were liquidated in a chapter 7 proceeding there would be $1,352 in administrative expenses. In addition, the costs of sale and capital gains tax payable by a chapter 7 trustee would be $6,016. Using these figures, unsecured creditors would receive nothing in a chapter 7 liquidation. Under the proposed Chapter 13 Plan they would receive $1,795. Howevei’, the Chapter 13 Trustee points out that in the real world a chapter 7 Trustee would not liquidate the residence because it would cost more in real estate commissions alone (not even counting the trustee’s capital gain tax liability) than what is available in nonexempt equity. Therefore, it is argued, a chapter 7 Trustee would abandon the residence and only liquidate the personal property, which would result in a net payment to unsecured creditors of $3,400. The question is thus presented. When the Code requires that a hypothetical chapter 7 liquidation be conjured up, does it mean a hypothetical liquidation based upon pure mathematical calculations? This Court will rely on the plain meaning of the words of the statute. Section 1324(a)(4) requires a comparison of “the value ... to be distributed under the plan” with the “amount that would be paid ... under chapter 7.” [Emphasis added]. Case law and treatises alike indicate that we are not to just mechanically determine the amount of the nonexempt equity and use that as the “amount that would be paid.” Rather we must reduce that amount by the anticipated chapter 7 administrative expenses and by the anticipated- costs of sale. See, e.g., In re Barth, 83 B.R. 204 (Bankr.D.Conn.1988). In addition, we must now take into consideration a hypothetical capital gains tax that would be payable by a chapter 7 trustee. In re Card, 114 B.R. 226 (Bankr.N.D.Cal.1990). Thus, it follows, that we must go the next step and determine what a hypothetical chapter 7 Trustee would" }, { "docid": "17602566", "title": "", "text": "who makes purchases using a company credit card “incurs costs” for which his employer is liable. As a matter of general bankruptcy principles (as Congress understood them), the history of the 1978 Bankruptcy Code revision is replete with statements to the effect that “[tjaxes arising from the operation of the estate after bankruptcy are entitled to priority as administrative expenses.” H.R.Rep. No. 95-595, p. 193 (1977), 1978 U.S.C.C.A.N. 5963, 6153 (emphasis added). See S.Rep. No. 95-1106, p. 13 (1978) (administrative expenses include “[tjaxes incurred during the administration of the estate” (emphasis added)); S.Rep. No. 95-989, p. 66 (1978), 1978 U.S.C.C.A.N. 5787, 5852 (“In general, administrative expenses include taxes which the trustee incurs in administering the debtor’s estate, including taxes on capital gains from sales of property by the trustee and taxes on income earned by the estate during the case” (emphasis added)); 124 Cong. Rec. 32415 (1978) (“The amendment generally follows the Senate amendment in providing expressly that taxes incurred during• the administration of the estate share the first priority given to administrative expenses generally” (emphasis added)); id., at 34014 (Senate version of the joint floor statement saying exactly the same). And importantly, as the majority concedes, ante, at 1892 -1893, bankruptcy law treats taxes incurred by corporate debtors while they are in bankruptcy proceedings as “tax[esj incurred by the estate,” even though the Tax Code does not treat the bankruptcy estate of a corporate debtor as a “separate taxable entity.” See, e.g., United States v. Noland, 517 U.S. 535, 543, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996) (treating Chapter 11 corporate debtor’s postpetition taxes as administrative expenses); In re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1298 (C.A.9 1995) (same); In re L.J. O’Neill Shoe Co., 64 F.3d 1146, 1151-1152 (C.A.8 1995) (same); In re Hillsborough Holdings Corp., 156 B.R. 318, 320 (Bkrtcy.Ct.M.D.Fla.1993) (“[Ajdministrative expenses should include taxes which the trustee, and, in Chapter 11 cases, the Debtor-in-Possession, incurs in administering the estate, including taxes based on capital gains from sales of property and taxes on income earned by the estate during the case post-petition”). Even though, as the majority" } ]

[ { "docid": "18681774", "title": "", "text": "who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense. See also RCM 1004 concerning aggravating circumstances in capital cases. Clearly, the uncharged misconduct delineated in this stipulation was directly related to the conduct for which appellant was found guilty. The stipulation evidenced a continuous course of conduct involving the same or similar crimes, the same victims, and a similar situs within the military community, i.e., the servicemember’s home. Cf. United States v. Silva, 21 MJ 336 (CMA 1986). These incidents demonstrate not only the depth of appellant’s sexual problems, but also the true impact of the charged offenses on the members of his family. These were appropriate sentence considerations under the above Manual rule. See generally United States v. Wilson, 28 MJ 48, 50 (CMA 1989). Appellant at trial further contended that the statute of limitations provided in Article 43, UCMJ, 10 USC § 843, was violated by recitation of the facts of these uncharged crimes at his court-martial. On appeal, he also suggests that admission of evidence of this misconduct was unfairly prejudicial within the meaning of Mil.R.Evid. 403. We find no legal support for the former argument and, in view of the judge’s express ruling, we find no abuse of his discretion under Mil.R.Evid. 403. United States v. Fontenot, 29 MJ 244, 252 (CMA 1989). The second issue in this case is whether the judge erred by failing to instruct the panel members on the purpose for which this uncharged misconduct might be considered. We note that defense counsel did not request specific limiting instructions on this point (see RCM 1005(f)) and trial counsel’s argument on these matters was not plain error. In fact, the large number of identical offenses for which appellant was actually convicted coupled with the extended period of their occurrence and the victims’ continuous minority suggest that such a limiting instruction would be superfluous. In any event, we note that the judge instructed the members that “you must bear" } ]

[ { "docid": "21162067", "title": "", "text": "sentence assessed by the lower court “‘is appropriate in relation to the affirmed findings of guilty’ so as to ‘assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed.’” United States v. Poole, 26 MJ 272, 274-75 (CMA 1988). We review the lower court’s assessment for abuse of discretion, and “[w]e will only disturb the [lower court's] reassessment in order to ‘prevent obvious miscarriages of justice or abuses of discretion.’ ” United States v. Jones, 39 MJ 315, 317 (CMA 1994). Applying the foregoing principles, we hold that the court below did not abuse its discretion. After that court reduced the offense from assault with intent to commit rape to indecent assault, appellant remained convicted of a serious sexual offense in addition to wrongful use of marijuana. Although we agree with the dissenting judge that the word “rape” can cause “a sense of outrage” in some cases, 48 MJ at 496, it is clear from the record that the court members were not outraged in this case. Even though they were sitting as a general court-martial, they imposed a special court-martial sentence. They sentenced appellant to a mere 6 months’ confinement, even though he was facing confinement for 22 years for the 2 offenses. See paras. 37e(l)(b) and 64e(l), Part IV, Manual for Courts-Martial, United States (1995 ed.). If the court-martial had convicted appellant of indecent assault instead of assault with intent to commit rape, he still would have been facing total confinement for 7 years (para. 63e, Part IV, Manual, supra), far more than the 6 months that was adjudged. Based on its review of the record, the court below “believe[d] that the members sentenced appellant for his actions and not the name of his offense.” The record amply demonstrates that the maximum imposable punishment was not a significant factor in sentencing. The court below, citing United States v. Sales, 22 MJ 305 (CMA 1986), and United States v. Suzuki, 20 MJ 248 (CMA 1985), concluded that “absent the error the members would have imposed the same" }, { "docid": "21773284", "title": "", "text": "sentencing purposes. Nonetheless, he deferred ruling on appellant’s motion until “the conclusion of any evidence, should it become necessary.” The issue, however, was never raised again, and no formal ruling was ever made by the military judge on this question at trial. The parties to this appeal have presumed that the military judge did not treat the above findings of guilty as multiplicious for sentencing. See generally United States v. Baker, 14 MJ 361, 370 (CMA 1983). We note, however, that appellant was eventually found guilty of both offenses which were the subject of his deferred multiplieity-for-sentence motion. Thus, in accordance with the judge’s own words, action on the motion was necessary. See United States v. Mullens, 29 MJ 398, 399 (CMA 1990); United States v. DeYoung, 29 MJ 78 (CMA 1989). In addition, the maximum authorized punishment for the forcible-sodomy offense, for which appellant was subsequently found guilty, was 20 years’ confinement. See para. 51e(1), Part IV, Manual for Courts-Martial, United States, 1984. Yet, the sentence which appellant actually received for all four of his offenses included confinement for only 18 months. In view of these circumstances, a presumption of separate sentencing or an assertion of prejudicial error is difficult to accept. See generally United States v. Montgomery, 20 USCMA 35, 39, 42 CMR 227, 231 (1970). In any event, we are not persuaded that the so-called “single impulse” theory of punishment mandates that appellant’s convictions for committing indecent acts and forcible sodomy be considered multiplicious for sentencing. See generally United States v. Baker, supra at 370. Paragraph 76a (5)(b), Manual for Courts-Martial, United States, 1969 (Revised edition), the authority cited in Baker for this sentencing theory, is no longer in effect. See Drafters’ Analysis of RCM 1003(c)(1)(C), 1984 Manual, supra at A21-64.1 (Change 3). Moreover, in the case before us, appellant aided and abetted two different criminal acts by two different criminal actors. Cf. United States v. Guerrero, 28 MJ 223, 227 (CMA 1989). Neither the criminal statutes violated nor our case law dictate that these offenses be treated as one for purposes of sentencing. United States v." }, { "docid": "17419730", "title": "", "text": "the Court of Criminal Appeals. I. Background At trial, appellant filed a motion to dismiss the charges under RCM 907, Manual for Courts-Martial, United States (2000 ed.), alleging illegal pretrial punishment in violation of Article 13, UCMJ, 10 USC § 813. The military judge made detailed findings of fact substantially incorporating these allegations of maltreatment. After concluding that he did not have the authority to dismiss the charges as a remedy for illegal pretrial punishment, the military judge denied the motion to dismiss. Subsequently, the military judge accepted appellant’s pleas and entered findings of guilty. He then determined that appellant' should receive 440 days of credit as a result of his pretrial confinement. Of that amount, he awarded: (1) a credit of 125 days for time spent in confinement, pursuant to United States v. Allen, 17 MJ 126 (CMA 1984), and (2) a credit of 315 days based upon his conclusion that appellant was subjected to illegal pretrial punishment in violation of Article 13 for a period of 105 days, warranting a three-for-one credit. He further noted that he would consider the fact of appellant’s maltreatment as a relevant factor in making his sentencing determination. II. Discussion A. Availability of Dismissal as a Remedy for Illegal Pretrial Punishment RCM 907(a) requires that a motion to dismiss be predicated on “grounds capable of resolution without trial of the general issue of guilt.” Although illegal pretrial punishment is not listed under RCM 907(b) (“Grounds for dismissal include the following...”), that list is illustrative, not exclusive. Drafters’ Analysis of RCM 907(b), Manual, supra at A21-54; see also 10 USC § 101(e)(4) (“includes” means “includes but is not limited to”); accord RCM 103(20). The court below concluded that “where no other remedy is appropriate, a military judge may, in the interest of justice, dismiss charges because of unlawful pretrial punishment.” 52 MJ at 769 (citing United States v. Nelson, 18 USCMA 177, 181, 39 CMR 177, 181 (1969), and United States v. Suzuki, 14 MJ 491 (CMA 1983)). We agree. We also agree with the observations of the court below that it does not" }, { "docid": "21773285", "title": "", "text": "his offenses included confinement for only 18 months. In view of these circumstances, a presumption of separate sentencing or an assertion of prejudicial error is difficult to accept. See generally United States v. Montgomery, 20 USCMA 35, 39, 42 CMR 227, 231 (1970). In any event, we are not persuaded that the so-called “single impulse” theory of punishment mandates that appellant’s convictions for committing indecent acts and forcible sodomy be considered multiplicious for sentencing. See generally United States v. Baker, supra at 370. Paragraph 76a (5)(b), Manual for Courts-Martial, United States, 1969 (Revised edition), the authority cited in Baker for this sentencing theory, is no longer in effect. See Drafters’ Analysis of RCM 1003(c)(1)(C), 1984 Manual, supra at A21-64.1 (Change 3). Moreover, in the case before us, appellant aided and abetted two different criminal acts by two different criminal actors. Cf. United States v. Guerrero, 28 MJ 223, 227 (CMA 1989). Neither the criminal statutes violated nor our case law dictate that these offenses be treated as one for purposes of sentencing. United States v. Cox, 18 MJ at 74. Accordingly, assuming the military judge did not treat these offenses as multiplicious for sentencing, we would find no abuse of discretion in that decision. The decision of the United States Army Court of Military Review is affirmed. Judge COX concurs. . The victim described herself as a \"comfort girl.\" She said this means: “Sometimes I work like waitress, takes orders from customers, and sometimes I sleep with a customer, too.” She met appellant and his cronies at the Chin Ju Club on the date of the alleged crimes. . Defense counsel did not pursue his multiplicity motion at the close of the evidence or ever refer to multiplicity of these offenses in his closing argument. Such defense inaction is at the very least some indication of a lack of prejudice inuring to appellant as a result of any possible error. See United States v. Munoz, 32 MJ 359 (CMA 1991); see also United States v. Sherman, 32 MJ 449 (CMA 1991); United States v. Jones, 23 MJ 301 (CMA 1987)." }, { "docid": "21686470", "title": "", "text": "mails. Further, evidence adduced at trial showed that the ammunition referred to in each specification was, indeed, the same ammunition referred to in the other. “In United States v. Timberlake, 18 MJ 371 (CMA 1984), we held that an officer cannot be convicted both of a substantive crime and of unbecoming conduct which consists of the commission of that crime.” United States v. Taylor, 23 MJ 314, 3186r (CMA 1987). Since the actions that constituted conduct unbecoming an officer included the same acts that violated the regulation, the latter conviction cannot stand distinct from the former. See generally United States v. Baker, 14 MJ 361 (CMA 1983); cf. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Citing United States v. Jones, 23 MJ 301 (CMA 1987), the Government argues, however, that this issue was waived. In Jones, though, we held only that, where specifications might be read as multiplicious, the accused waived his appellate complaint when he did not move to make the specifications more definite and certain in order to make clear the overlapping relationship between them. Where, as here, that relationship is clear in the pleadings and is confirmed by the evidence, the military judge’s failure to treat them as multi plicious is plain error. United States v. Allen, 16 MJ 395, 396 (CMA 1983); United States v. Holt, 16 MJ 393 (CMA 1983). Therefore, appellant’s multiplicity complaint that was available but unasserted at trial remains, nonetheless, alive and well on appeal. Cf. Mil.R.Evid. 103(d), Manual for Courts-Martial, United States, 1984. Appellant is entitled to consolidation of these specifications. II The question remains whether Waits suffered substantial harm from this multiplicity. Appellant points out that the military judge expressly held that the two offenses were separate for findings and sentence when he computed the maximum imposable confinement to be 12 years. As such, appellant argues that he is entitled to sentence relief. A decision whether appellant is entitled to sentence relief and, if so, what sort of relief is not so simple as appellant suggests. When error has been uncovered on appeal," }, { "docid": "21793781", "title": "", "text": "of guilty. See United States v. Morris, 18 MJ 450 (CMA 1984); United States v. Rushing, 11 MJ 95 (CMA 1981). However, appellant was not found guilty of simple assault under this codal provision but rather was convicted of an aggravated-type assault which includes a specific intent to commit a particular crime of a more severe nature. Art. 134; para. 64(c)(4) and (6), Part IV, Manual, supra. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at 296; J. Snedeker, Military Justice Under the Uniform Code 825 (1953). See generally R. Perkins and R. Boyce, Criminal Law 642-44 (3d ed.1982). In this context, the course of each crime or intended unit of prosecution is best gauged by the duration of the specific intent required for commission of the offense. See generally United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 231, 97 L.Ed. 260 (1952); see II Wharton’s Criminal Law § 199 (14th ed.1979). Here, the record shows that separate acts were involved which constituted each assault. Moreover, there was a lapse of time between these acts, albeit one of short duration. Finally, the criminal intent harbored by appellant at the time of the alleged acts was different and did not include the other as a matter of fact. We find no multiplicity for charging or findings in this situation. See United States v. Cox, 18 MJ 72, 75 (CMA 1984); see generally United States v. Baker, supra at 367 n.4. See also RCM 907(b)(3)(B). Turning to sentencing, we note that appellant made no motion to have these findings considered multiplicious for sen-fencing. RCM 906(b)(12). We are not inclined to speculate concerning application in this case of the various multiplicity-for-sentencing rules noted in the Manual for Courts-Martial (see RCM 1003(c)(1)(C), Discussion), and we do not consider the failure of the military judge to address them on his own to be plain error. United States v. Jones, 23 MJ at 303; cf. United States v. Holt, 16 MJ 393 (CMA 1983). II The second granted issue asks whether the staff judge advocate erred by" }, { "docid": "1131948", "title": "", "text": "thus virtually the same as the “elements” test in Blockburger. 12. Finally, we conclude that there are no judicial prohibitions on separate punishments. By judicial decisions before Teters, this Court had imposed limits on punishments. See RCM 1003(e)(1)(C), Discussion, and Drafter’s Analysis, Manual, supra at A21-63 (Change 2). In Teters, however, we abandoned the “fairly embraced” test of United States v. Baker, 14 MJ 361 (CMA 1983). See 37 MJ at 376. We had earlier abandoned the “single impulse” test in United States v. Traeder, 32 MJ 455, 456-77 (CMA 1991). Under the facts of this case, the punishment is not limited by the “ultimate offense” doctrine. See United States v. Traxler, 39 MJ at 478-79, citing United States v. Peaches, 25 MJ 364, 366 (CMA 1987), and United States v. Bratcher, 18 USCMA 125, 128, 39 CMR 125, 128, 1969 WL 5928 (1969). The order was not given to enhance the punitive consequences of missing the movement but, rather, was given in an effort to gain appellant’s compliance with the movement directive by supporting it with the full authority of the squadron commander’s office. See United States v. Traxler, 39 MJ at 479, citing United States v. Pettersen, 17 MJ 69, 72 (CMA 1983), and United States v. Loos, 4 USCMA 478, 480-81, 16 CMR 52, 54-55, 1954 WL 2427 (1954); para. 14e(2)(a)(iii), Part TV. We are left only with the “elements” test set out in RCM 1003(c)(1)(C). 13. Applying RCM 1003(c)(1)(C) to this case, we conclude that the offenses are separately punishable. The willful disobedience was completed before the missed movement occurred. The elements of the offenses are different. Neither offense is included in the other. Appellant could have disobeyed the orders but still have moved with his unit, or he could have obeyed the orders but missed the movement. Accordingly, we hold that the willful-disobedience offenses were not multiplicious for findings or sentence with the missing-movement offense. The decision of the United States Air Force Court of Military Review is affirmed. Chief Judge SULLIVAN and Judges COX, CRAWFORD, and WISS concur. . See 41 MJ 213, 229" }, { "docid": "21666142", "title": "", "text": "2789, 61 L.Ed.2d 560 (1979); see generally United States v. Wagner, 884 F.2d 1090, 1095-96 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Candoli, 870 F.2d 496, 502-3 (9th Cir.1989); United States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); United States v. Watson, 31 MJ 49, 53 (CMA 1990); United States v. Johnson, 30 MJ 53, 57 (CMA 1990); United States v. Presto, 24 MJ 350 (CMA 1987); and United States v. Byrd, 24 MJ 286 (CMA 1987). Accordingly, the military judge did not err in denying appellant’s motion for a finding of not guilty of the Charge and specification of attempted premeditated murder. The decision of the United States Air Force Court of Military Review is affirmed. Senior Judge EVERETT concurs. . The real stake in this appeal is the sentence. If, as appellant contends, he is merely guilty of soliciting murder, the most he can be confined is 5 years. Para. 105e, Part IV, Manual for Courts-Martial, United States, 1984. If, however, he is guilty of attempted murder, the maximum confinement is 20 years (para. 4e, Part IV, Manual, supra), with the result that his approved sentence would stand. Of course, if the facts stood as appellant believed and hoped them to be, he would be guilty as a principal to premeditated murder — and conspiracy as well. Arts. 81 and 118, Uniform Code of Military Justice, 10 USC §§ 881 and 918, respectively. Under those circumstances, the minimum term he could have received would have been confinement for life. Art. 118. Fortuitously for all concerned, appellant’s efforts were frustrated by law enforcement personnel. Thus, murder (Art. 118) is not applicable because the intended victim is not dead. Conspiracy (Art. 81) is also arguably not available because the agent did not actually agree to kill Mrs. Church. But cf. Saienni v. State, 346 A.2d 152 (Del.1975). . The granted issue broadly questions the correctness of the judge’s ruling denying the defense’s motion for a finding of not" }, { "docid": "21773281", "title": "", "text": "Opinion of the Court SULLIVAN, Chief Judge: In July of 1988 appellant was tried by a general court-martial composed of a military judge sitting alone at Camp Casey, Republic of Korea. Contrary to his pleas, he was found guilty of committing indecent acts and forcible sodomy, in violation of Articles 134 and 125, Uniform Code of Military Justice, 10 USC §§ 934 and 925, respectively. Consistent with his pleas by exceptions and substitutions, he was also found guilty of two specifications of assault consummated by a battery, in violation of Article 128, UCMJ, 10 USC § 928. He was sentenced to a bad-conduct discharge, confinement for 18 months, and reduction to pay grade E-1. The convening authority approved this sentence on September 20, 1988. The Court of Military Review affirmed these results in a short-form opinion on September 18, 1989. Appellant petitioned this Court for review on July 2, 1990. We granted review on October 2, 1990, on the following issue: WHETHER THE MILITARY JUDGE ERRED IN FAILING TO GRANT A DEFENSE MOTION TO FIND CHARGES I (INDECENT ACTS) AND II (FORCIBLE SODOMY) MULTIPLICIOUS FOR SENTENCING. We hold that no error was committed in the military judge’s sentencing of appellant and affirm. See generally United States v. Cox, 18 MJ 72 (CMA 1984). The facts giving rise to the granted issue are not in dispute. Appellant brought the alleged victim, a Korean “comfort girl,” to his apartment off post. Two fellow soldiers, Sergeant Kiggins and Specialist Witcher, went along with them. A dispute occurred, causing appellant to become angry and strike the victim. Appellant then held the victim while Witcher assaulted her and Kiggins tied her up. The three soldiers then put the victim on her stomach. While Kiggins held her ankles, appellant pushed her head to the ground and held his hand over her mouth. Witcher then rubbed his penis against her buttocks and masturbated upon her. Witcher then changed places with Kiggins, and appellant continued to hold her head down. Kiggins then committed anal sodomy on the victim. Appellant was found guilty of aiding and abetting Witcher’s indecent" }, { "docid": "21793774", "title": "", "text": "Opinion of the Court SULLIVAN, Judge: On February 26 and 27, 1987, appellant was tried by general court-martial composed of officer members at Fort Huachuea, Arizona. Contrary to his pleas, he was found guilty of assault with intent to commit rape, assault with intent to commit sodomy, committing indecent acts, wrongful solicitation to commit sodomy, and forcible sodomy, all on the same female under the age of 16, as well as false swearing, in violation of Articles 134 and 125, Uniform Code of Military Justice, 10 USC §§ 934 and 925, respectively. He was sentenced to a bad-conduct discharge, confinement for 7 years, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the find ings and sentence in a short-form opinion dated December 14, 1987. This Court granted review of the following issues: I WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FAILING TO FIND ASSAULT WITH INTENT TO COMMIT RAPE (SPECIFICATION 1 OF THE CHARGE) MULTIPLICIOUS WITH ASSAULT WITH INTENT TO COMMIT SODOMY (SPECIFICATION 2 OF THE CHARGE). II WHETHER THE STAFF JUDGE ADVOCATE ERRED BY FAILING TO ADVISE THE CONVENING AUTHORITY, AS WAS HIS DUTY UNDER RULE FOR COURTSMARTIAL [R.C.M.] 1106(d)(4), WHETHER CORRECTIVE ACTION SHOULD BE TAKEN AFTER THE TRIAL DEFENSE COUNSEL EXPLICITLY RAISED A LEGAL ERROR IN HIS R.C.M. 1105 SUBMISSION. We hold no error occurred as a result of the judge’s failure to find the assault charges multiplicious for findings or sentence. See United States v. Jones, 23 MJ 301, 303 (CMA 1987). Moreover, the staff judge advocate’s failure to address a legal error assigned by defense counsel in his post-trial recommendation to the convening authority was harmless error. United States v. Hill, 27 MJ 293 (CMA 1988). On August 8, 1986, appellant attempted vaginal sex with his 11-year-old stepdaughter. Unsuccessful in his first attempt, he then attempted anal penetration, also unsuccessfully. At trial, neither defense nor government counsel raised any multiplicity questions regarding these offenses. At an Article 39(a), UCMJ, 10 USC § 839(a), session prior to sentencing, government" }, { "docid": "12115777", "title": "", "text": "Opinion of the Court SULLIVAN, Judge: On December 10 and 11, 1986, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Stewart, Georgia. Contrary to his pleas, he was found guilty of two specifications of committing indecent acts, as well as one specification each of assault with intent to commit sodomy and nonconsensual sodomy, in violation of Articles 134 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 925, respectively. He was sentenced to a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged except for confinement in excess of 20 years. The Court of Military Review dismissed one of the indecent-act specifications but affirmed the remaining findings of guilty and the approved sentence. 25 MJ 631 (1987). This Court granted review of the following issues, which we note in reverse order: I WHETHER APPELLANT HAD RECEIVED THE EQUIVALENT OF A PARDON, ANNULMENT OR CERTIFICATE OF REHABILITATION RENDERING EVIDENCE OF HIS PRIOR CONVICTION INADMISSIBLE. II WHETHER EVIDENCE OF A PRIOR CONVICTION WAS IMPROPERLY ADMITTED DEPRIVING APPELLANT OF HIS RIGHT TO A FAIR TRIAL. We hold that the military judge did not abuse his discretion in finding appellant’s Army Retraining Brigade Certificate of Completion and his subsequent return to military service did not bar admission of government evidence of his previous rape conviction under Mil. R. Evid. 609(c), Manual for Courts-Martial, United States, 1984. See generally United States v. Brenizer, 20 MJ 78, 81 n.4 (CMA 1985); see United States v. Rogers, 17 MJ 990 (ACMR), pet. denied, 19 MJ 110 (1984). In addition, defense waived its other unresolved objections to this government evidence by introducing its own evidence of this conviction prior to an adverse ruling from the judge. See United States v. Gamble, 27 MJ 298 (CMA 1988); United States v. Butler, 3 MJ 211, 213 (CMA 1977). The prosecution evidence showed the following: on or about April 15, 1986, appellant anally sodomized Specialist Four D. On June 25, 1986, appellant forcibly prevented Miss P., then" }, { "docid": "12120944", "title": "", "text": "Opinion of the Court SULLIVAN, Chief Judge: Appellant was tried by a general court-martial composed of a military judge alone at Fort Eustis, Virginia, in June of 1991. Contrary to his pleas, he was found guilty of attempted consensual sodomy, disobedience of a superior commissioned officer (11 specifications), sodomy, aggravated assault (7 specifications), and committing indecent acts, in violation of Articles 80, 90, 125, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 890, 925, 928, and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 15 years, total forfeitures, and reduction to pay grade E-l on June 29, 1991. The convening authority approved this sentence on October 10, 1991, and the Court of Military Review affirmed his action on November 13, 1992. 36 MJ 545. On April 22, 1993, this Court granted appellant’s petition for review on two issues raised by appellate defense counsel, as follows: I WHETHER THE MILITARY JUDGE ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, BY CHARACTERIZING AN AGGRAVATED ASSAULT BASED ON AN ATTEMPT THEORY AS A GENERAL INTENT CRIME, RATHER THAN A SPECIFIC INTENT CRIME, AND THE GOVERNMENT FAILED TO PROVE SPECIFIC INTENT ON THE PART OF APPELLANT. II WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE OF INDECENT ACTS TO THE CHARGED OFFENSE OF RAPE. We hold that appellant was properly found guilty of aggravated assault in violation of Article 128(b)(1). See generally United States v. Joseph, 37 MJ 392 (CMA 1993); United States v. Stewart, 29 MJ 92 (CMA 1989). We further hold that committing indecent acts is a lesser-included offense of rape as a matter of law. See generally Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); United States v. Headspeth, 2 USCMA 635, 10 CMR 133 (1953). The Court below noted the circumstances of appellant’s offenses as follows: The appellant was diagnosed in 1988 with the Human Immunodeficiency Virus (HIV). He was medically evaluated at the Walter Reed Army Medical Center and assigned to Fort Eustis, Virginia. Upon" }, { "docid": "21793780", "title": "", "text": "Military Review and expands this contention before this Court by arguing that, at the very least, these offenses were multiplicious for sentencing. He asks for consolidation of these findings of guilty and a sentence rehearing or, in the alternative, a remand of this case for sentence reassessment. The basis of appellant’s claim is the absence of a time lapse between these offenses and the general command in the Discussion to RCM 307(c)(4), Manual for Courts-Martial, United States, 1984. This Discussion states: “What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.” Appellant also contends that “the interlocking nature of the offenses” precludes two convictions. We have examined these arguments in light of United States v. Baker, 14 MJ 361 (CMA 1983), and reject them. This Court has held that Congress intended assault, as prescribed in Article 128, UCMJ, 10 USC § 928, to be a continuous course-of-conduct-type offense and that each blow in a single altercation should not be the basis of a separate finding of guilty. See United States v. Morris, 18 MJ 450 (CMA 1984); United States v. Rushing, 11 MJ 95 (CMA 1981). However, appellant was not found guilty of simple assault under this codal provision but rather was convicted of an aggravated-type assault which includes a specific intent to commit a particular crime of a more severe nature. Art. 134; para. 64(c)(4) and (6), Part IV, Manual, supra. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at 296; J. Snedeker, Military Justice Under the Uniform Code 825 (1953). See generally R. Perkins and R. Boyce, Criminal Law 642-44 (3d ed.1982). In this context, the course of each crime or intended unit of prosecution is best gauged by the duration of the specific intent required for commission of the offense. See generally United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 231, 97 L.Ed. 260 (1952); see II Wharton’s Criminal Law § 199 (14th ed.1979). Here, the record shows that separate acts were involved which constituted each assault. Moreover," }, { "docid": "21773015", "title": "", "text": "(Emphasis added.) At trial, before the entry of pleas, defense counsel moved to have the two obstruction-of-justice specifications merged, due to the multiplicious nature of the specifications. He argued that “they arose out of a single, integrated transaction in which there was a unity of time, an incessant flow of events and a single impulse.” Trial counsel objected that pleas had not been entered yet, and therefore it was premature to argue multiplicity. Thereafter, the judge deferred issuing a ruling. After pleas the judge did make his ruling on this motion. He stated: As to Specifications 1 and 2 of Charge I, I find that they are — although it was done around the same time and place, however, it was done to separate people who would be witnesses against the accused, and I find that although they merge for sentencing purposes — that the government has conceded — they do not merge for findings purposes. The motion is denied in part, granted in part. It’s denied for findings — to merge them is denied, but I do find, technically, that they are multiplicious for sentencing purposes and I will consider them as one for sentencing purposes. I Appellant asserted for the first time on appeal that his pretrial restriction was tantamount to confinement and, therefore, he was entitled to administrative credit- for this period of custody against his sentence to confinement. See United States v. Allen, 17 MJ 126 (CMA 1984); e.g., United States v. Mason, 19 MJ 274 (CMA 1985) (summary disposition). See generally RCM 305(j)(2), Manual for Courts-Martial, United States, 1984. We have considered this belated claim (see RCM 906(b)(8)) in light of the conditions of restriction found by the Court of Military Review. See generally United States v. Smith, 20 MJ 528, 531-32 (ACMR 1985). We also note that defense counsel stated that “we do not claim it was tantamount to confinement.” In this context, we find appellant has failed to establish that he was entitled to administrative credit for his time in restriction. See RCM 905(c)(2)(A); see also United States v. Palmiter, 20 MJ 90," }, { "docid": "21793779", "title": "", "text": "was only available at Fort Leavenworth and whether it was at “other military confinement areas.” The military judge told him that for a sentence ranging from 1 day to 4 months, prisoners are held in a stockade. Sentences of 4 months to 2 years were served at the Fort Riley, Kansas, Correctional Activity. Finally, sentences of 2 years and over were served at the United States Disciplinary Barracks, Fort Leavenworth, Kansas. Defense objected, arguing that the judge had just effectively told the members that treatment was only available at the Disciplinary Barracks. As a result, the military judge told the members that a similar program was available at the Fort Riley Correctional Activity. In response, the President stated, “Okay, thank you, that makes a difference.” The members then sentenced appellant to confinement for 7 years. I Appellant asserts that he should not have been found guilty of both assault with intent to commit rape and assault with intent to commit sodomy. He raised this argument for the first time on appeal before the Court of Military Review and expands this contention before this Court by arguing that, at the very least, these offenses were multiplicious for sentencing. He asks for consolidation of these findings of guilty and a sentence rehearing or, in the alternative, a remand of this case for sentence reassessment. The basis of appellant’s claim is the absence of a time lapse between these offenses and the general command in the Discussion to RCM 307(c)(4), Manual for Courts-Martial, United States, 1984. This Discussion states: “What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.” Appellant also contends that “the interlocking nature of the offenses” precludes two convictions. We have examined these arguments in light of United States v. Baker, 14 MJ 361 (CMA 1983), and reject them. This Court has held that Congress intended assault, as prescribed in Article 128, UCMJ, 10 USC § 928, to be a continuous course-of-conduct-type offense and that each blow in a single altercation should not be the basis of a separate finding" }, { "docid": "21773283", "title": "", "text": "acts and Kiggins’ sodomy of the Korean girl. Art. 77, UCMJ, 10 USC § 877. The particular specifications of which appellant stands guilty as an aider and abettor state: CHARGE I: Violation of the UCMJ, Article 80 SPECIFICATION: In that [appellant] did, at an apartment in Yongtae-ri, Republic of Korea, a city located outside the territorial limits of the United States, on or about 25 May 1988, wrongfully commit indecent acts with CHO, Sun Cha, by placing his penis against the anus of the said CHO, Sun Cha and ejaculating on her anal area. Charge II: Violation of the UCMJ, Article 125 Specification: In that [appellant] did, at an apartment in Yongtae-ri, Republic of Korea, a city located outside the territorial limits of the United States, on or about 25 May 1988 commit forcible sodomy with CHO, Sun Cha, by force and without the consent of the said CHO, Sun Cha. Prior to findings, appellant moved that these offenses be considered multiplicious for sentencing. The military judge had earlier recognized a potential for multiplicity for sentencing purposes. Nonetheless, he deferred ruling on appellant’s motion until “the conclusion of any evidence, should it become necessary.” The issue, however, was never raised again, and no formal ruling was ever made by the military judge on this question at trial. The parties to this appeal have presumed that the military judge did not treat the above findings of guilty as multiplicious for sentencing. See generally United States v. Baker, 14 MJ 361, 370 (CMA 1983). We note, however, that appellant was eventually found guilty of both offenses which were the subject of his deferred multiplieity-for-sentence motion. Thus, in accordance with the judge’s own words, action on the motion was necessary. See United States v. Mullens, 29 MJ 398, 399 (CMA 1990); United States v. DeYoung, 29 MJ 78 (CMA 1989). In addition, the maximum authorized punishment for the forcible-sodomy offense, for which appellant was subsequently found guilty, was 20 years’ confinement. See para. 51e(1), Part IV, Manual for Courts-Martial, United States, 1984. Yet, the sentence which appellant actually received for all four of" }, { "docid": "12103316", "title": "", "text": "affirmed. If, instead, the lesser-included offense of solicitation to “frame” Captain Dumpson is substituted, the feasibility of reliably determining what sentence would have been imposed by a court-martial is greatly reduced. V 24. The Manual for Courts-Martial provides that — except for the solicitations which are the subject of Article 82 of the Code — the maximum punishment for solicitation of an offense shall be the same as for the offense solicited but in no event greater than 5 years of confinement. See para. 105c, Part IV, Manual, supra. In this case Gleason pleaded guilty to soliciting Mr. Fowler to incriminate Captain Dumpson falsely. 25. During the providence inquiry at trial, defense counsel stated that he had advised Gleason that the maximum punishment for the lesser-included offense was 4 months’ confinement, partial forfeiture, see n. 2, supra, and reduction to Private E-1. Trial counsel concurred, and the military judge gave the same advice to the accused. Presumably the premise at trial was that the offense solicited would have been a simple disorder for which the maximum punishment is 4 months’ confinement. See para. 73e (1), Part IV, Manual, supra. 26. If the guilty plea is to be relied upon for purposes of upholding a conviction for solicitation of Mr. Fowler to incriminate Captain Dumpson falsely, this Court should proceed on the assumption that no greater punishment can be imposed in resentencing than that of which appellant was advised at trial; otherwise the guilty plea might be attacked as improvident. 27. With this 4-month ceiling on confinement, it becomes even more difficult to determine reliably what sentence might be imposed on Gleason by a court-martial which received extensive evidence of extenuation and mitigation. 28. Taking into account all the circumstances, we are convinced that an appellate court cannot reliably determine what sentence would have been imposed at the trial level if the court-martial had been considering the only offense as to which findings of guilty can be affirmed on the present record. Thus, United States v. Sales, 22 MJ 305, 307 (CMA 1986), would require a rehearing on sentence at the" }, { "docid": "16336951", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: Contrary to his pleas, a general court-martial consisting of a military judge alone convicted appellant of rape, aggravated assault , sodomy, and housebreaking, in violation of Articles 120, 128, 125, and 130 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, 925, and 930, respectively. He was sentenced to a dishonorable discharge, confinement for 7 years, total forfeitures, and reduction to E-l. We granted review of the contention that the aggravated assault charge was multiplicious for findings and sentencing purposes with the charges of rape and sodomy. 11 M.J. 405 (1981). In sum, the evidence showed that appellant entered the victim’s room at night and, at knife point, raped and sodomized her. The charge of aggravated assault required proof that appellant employed a “means or force likely to produce death or grievous bodily harm.” Article 128(b)(1), UCMJ, 10 U.S.C. § 928(b)(1); para. 207c (1), Manual for Courts-Martial, United States, 1969 (Revised edition). Conviction for rape or forcible sodomy requires proof that an accused has engaged in certain sexual acts by force and without the victim’s consent. See paras. 199a and 204, Manual, supra. Thus, the charge of aggravated assault included an element which was unnecessary in establishing either of the sexual offenses; and those offenses had elements not included in the aggravated assault. See para. 76a (5), Manual, supra. However, here the charges flowed from “a single impulse or intent”; and the assault constituted the force necessary to effectuate the sexual offenses. See para. 76a (5)(b), Manual, supra. As the record does not indicate that the aggravated assault was performed for any other purpose, the military judge erred in considering it a separate offense for punishment purposes. United States v. Baker, 14 M.J. 361, 367 (C.M.A.1983). Whether the aggravated assault should have been treated as multiplicious for findings purposes is a more difficult issue. In United States v. Baker, supra, we held that two offenses are multiplicious for findings purposes when one is lesser included within the other; and we explained: Assuming both offenses arise out of one transaction, one" }, { "docid": "21162071", "title": "", "text": "been different” if indecent assault had been an option, he made no comments regarding the sentence. He requested only \"that clemency be granted in the form of finding A1C Davis guilty of indecent assault.” The court below did exactly what Capt Hoang requested. SULLIVAN, Judge (dissenting): Appellant was found guilty of using marijuana and assault with intent to commit rape, in violation of Articles 112a and 134, Uniform Code of Military Justice, 10 USC §§ 912a and 934, respectively. The members were instructed that the maximum confinement authorized for these offenses included, inter alia, 22 years of confinement. The members sentenced appellant to a bad-conduct disl charge, 6 months’ confinement, total forfeitures, and reduction to E-l. In an unpublished opinion, the Court of Criminal Appeals set aside appellant’s conviction for assault with intent to commit rape, but affirmed a finding of guilty to the lesser-included offense of indecent assault. It then determined that no sentence relief was required. It said: Next, we must determine if this substitution in the findings requires any sentence relief. The members were well aware of both the circumstances surrounding the offense as well as the appellant’s background and mitigation. We believe that the members sentenced appellant for his actions and not the name of his offense. We further believe that absent the error the members would have imposed the same sentence. United States v. Sales, 22 MJ 305 (CMA 1986); United States v. Suzuki, 20 MJ 248 (CMA 1985). Moreover, that sentence is appropriate. United States v. Healy, 26 MJ 394 (CMA 1988). Unpub. op. at 3 (emphasis added). As I will show, this holding by the lower court and the majority opinion of this Court affirming it on the basis of our decision in United States v. Jones, 39 MJ 315, 317 (CMA 1994), are legally incorrect. Turning again to the facts of this ease, I initially note that the decision of the Court of Criminal Appeals substantially changed the severity of the offenses for which appellant was charged and found guilty at his criminal trial. See United States v. Peoples, 29 MJ 426" }, { "docid": "1131947", "title": "", "text": "of willful disobedience and missing movement. Articles 87 and 90, and their legislative history, are silent regarding congressional intent. Accordingly, we presume congressional intent to permit prosecution and punishment for both offenses, because they have different elements and neither is included in the other. See United, States v. Teters, 37 MJ at 377-78. See also United States v. Wheeler, 40 MJ 242, 244 — 47 (CMA 1994). Compare para, lib with para. 14b, Part IV, Manual for Courts-Martial, United States, 1984. 11. We further conclude that the President has not prohibited separate punishments for willful disobedience and missing movement. Exercising his power to limit sentences under Article 56, UCMJ, 10 USC § 856, the President has promulgated RCM 1003(c)(1)(C), Manual, supra. This rule addresses sentence multiplicity as follows: ‘When the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense____ [0]ffenses are not separate if each does not require proof of an element not required to prove the other.” The language of RCM 1003(c)(1)(C) is thus virtually the same as the “elements” test in Blockburger. 12. Finally, we conclude that there are no judicial prohibitions on separate punishments. By judicial decisions before Teters, this Court had imposed limits on punishments. See RCM 1003(e)(1)(C), Discussion, and Drafter’s Analysis, Manual, supra at A21-63 (Change 2). In Teters, however, we abandoned the “fairly embraced” test of United States v. Baker, 14 MJ 361 (CMA 1983). See 37 MJ at 376. We had earlier abandoned the “single impulse” test in United States v. Traeder, 32 MJ 455, 456-77 (CMA 1991). Under the facts of this case, the punishment is not limited by the “ultimate offense” doctrine. See United States v. Traxler, 39 MJ at 478-79, citing United States v. Peaches, 25 MJ 364, 366 (CMA 1987), and United States v. Bratcher, 18 USCMA 125, 128, 39 CMR 125, 128, 1969 WL 5928 (1969). The order was not given to enhance the punitive consequences of missing the movement but, rather, was given in an effort to gain appellant’s compliance with the movement directive by supporting" } ]

[ { "docid": "2003141", "title": "", "text": "one of the smuggling suggestions was that of dissolving cocaine in chemical fluid and reconstituting it when it arrived in the United States. The expert witness would have testified that such could likely not be done. We hold that none of this testimony was such as to require reversal and new trial because it has not been demonstrated to have been significant in light of the entire record, nor does it constitute a substantial and significant portion of the record. A showing that the missing portion of the record is “substantial and crucial” was required in United States v. Selva, 559 F.2d 1303 (5th Cir.1977). No such showing has been made here. No challenge to the instructions is made. The court, we observe, was meticulous in submitting the proper jury instructions, including a cautionary instruction that the testimony of an accomplice or co-conspirator was to be received with great caution. Further, the trial court adequately instructed on the presumption of innocence, the burden of proof (placed squarely on the Government) and that no guilty verdict could be rendered unless the guilt of a defendant was established beyond a reasonable doubt. VII. Appellants urge reversal on the ground that the district court failed to grant their motions for severance. We disagree. Rule 8(b), Fed.Rules Crim.Proc., 18 U.S.C.A. authorizes that defendants may be charged jointly in the same indictment where it is alleged that they participated in the same act or series of transactions. The trial court may, pursuant to Rule 14, Fed. Rules of Crim.Proc., 18 U.S.C.A. grant a severance of defendants, in its discretion, or provide whatever other relief justice requires. The trial court must weigh the prejudice to a particular defendant caused by joinder against the obvious important considerations of judicial economy and the expedition of the administration of justice. United States v. Walton, 552 F.2d 1354 (10th Cir.1977), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977). Inasmuch as severance is a matter of discretion and not one of right, the defendant must bear a heavy burden of showing actual prejudice to his case. United" } ]

[ { "docid": "23644658", "title": "", "text": "this action, Davidson, entered into a plea bargain with the United States Attorney. This case against him was dismissed. Davidson later appeared as a government witness at the trial. Defendants Haws, Heredia and Morgan raise eight points of error: 1. Denial of Motion for Continuance After granting two motions for continuance of trial (motions of July 12, 1983 and August 11, 1983), the court denied a third motion made on October 19, 1983. The grounds for all of these motions were that defense counsel needed more time to prepare for a case this complex. The court denied the third motion because it felt that defense counsel had been given enough time and that the case, while complex, did not become less so just by waiting longer. Accordingly, trial began on October 31, 1983. Appellants complaint that, although the government had an “open file” policy previously in effect, they were not told what exhibits the government would be using until October 19, and this did not give them enough time. While we do not approve in any manner the cavalier way in which the government’s attorneys treated discovery, our analysis does not stop at this threshold. Indeed, this entire appeal could have been avoided or significantly simplified had the government’s attorneys cooperated with the court and appointed counsel by providing discovery in an organized manner at the earliest possible time. It is clear that motions for continuance are addressed to the discretion of the trial court. Even if the defense is given a large amount of material to prepare in a short time, a showing of clear abuse of discretion resulting in manifest injustice is required before there can be reversal. United States v. Gonzales-Palma, 645 F.2d 844, 846-47 (10th Cir.1981). Here there is no showing that the ability of counsel to be effective was at all affected by the denial of the third motion for continuance. cf., United States v. King, 664 F.2d 1171 (10th Cir.1981). We have scrutinized the entire record with a view to determining whether there was prejudice to the defendants and whether the trial suggested unfairness." }, { "docid": "23644670", "title": "", "text": "prejudiced since there was more evidence against Morgan than against them. The motion was denied. On appeal, Haws and Heredia allege prejudice from the fact that they took the stand but Morgan did not. Defendants concede that the granting or denying of a motion to sever rests within the sound discretion of the trial court, United States v. Pilling, 721 F.2d 286, 297 (10th Cir.1983). As with the questions previously addressed concerning continuances and bills of particulars, defendants must show actual prejudice as well as abuse of discretion before a ruling can constitute reversible error. Defendants Haws and Heredia claim prejudice because they took the stand and Morgan did not. Such a scenario cannot amount to prejudice; it is neither law nor fact. Any defendant’s election to testify or remain silent is inconsequential. [We note there is no objection to the court’s instruction on this issue.] What might be of consequence would be the specific facts related in testimony given or not related because of testimony withheld. Again, we are unable to confront the issue because no specifics are presented. As previously stated, our independent review of the entire record does not provide a substitute for the absent argument. Finally, more is required to establish an abuse of discretion than an assertion that separate trials might have resulted in a better chance of acquittal. United States v. Hines, 696 F.2d 722, 732 (10th Cir.1982). Particularly where as here a conspiracy is charged, individual conspirators should be tried together. Hines, supra at 732. 7. Use of Portions of Cardall’s Diary The government was allowed to use inculpatory portions of Cardall’s diary under the “residual” hearsay exception, Fed.R. Evid. 804(b)(5). The defendants argue that this was improper because there were no “circumstantial guarantees of trustworthiness” as required by the rule. For all we know, they say, the diary could have been fiction. The government counters that the diary was self-incriminating, corroborated by other evidence and relied on daily by Cardall. The defendants also complain that the court, after admitting the government’s portions, excluded other portions that they wanted to present. Defendant Morgan" }, { "docid": "23644653", "title": "", "text": "discount. FSI personnel also made representations to their customers that there would be an additional return on investment based upon a percentage split in the profits made by FSI. The customers, or “clients” as FSI preferred to call them, would send money to FSI expecting FSI to send the money on to creditors in a timely fashion. Instead, FSI would transfer the money to a related entity, General Clearing House, which would buy tax free bonds. The bonds, in turn, were offered to other investors as collateral to put money into the program that would pay the “clients’ ” bills. While FSI had control of the money during the lag time, it would use it to invest in commodities markets wistfully hoping to earn a substantial return. During 1979 and 1980 a number of customers placed in excess of $3,000,000 with FSI. With little or no break in continuity the payables program began to have difficulty and a number of accounts payable of the customers were not paid in timely manner. By mid-1981 the program and FSI collapsed. The trial began on October 31, 1983 with these three defendants, Morgan, Haws and Heredia remaining for verdict. The trial continued through November 10, 1983 when the jury returned verdicts of guilty against all three defendants on all four counts. PROCEDURAL RECORD -On May 11, 1983, the grand jury issued a four count indictment against four defendants, Robert Morgan, Joseph Wayne Haws, John C. Heredia and Sherman Davidson. Count I charged conspiracy in violation of Title 18, U.S.C. § 371. Counts II and III charged interstate transportation of funds obtained by fraud in violation of Title 18, U.S.C. §§ 2314 and 2. Count IV charged fraud by wire in contravention of Title 18, U.S.C. § 1343. On September 28, 1983, a superseding indictment was filed. The superseding indictment, however, did not differ significantly from the original indictment. The trial of all four defendants was originally set for June 27, 1983. On June 16, 1983, the government filed a Motion for a Continuance and Notice of No Objection. On July 12, 1983, the" }, { "docid": "23644654", "title": "", "text": "and FSI collapsed. The trial began on October 31, 1983 with these three defendants, Morgan, Haws and Heredia remaining for verdict. The trial continued through November 10, 1983 when the jury returned verdicts of guilty against all three defendants on all four counts. PROCEDURAL RECORD -On May 11, 1983, the grand jury issued a four count indictment against four defendants, Robert Morgan, Joseph Wayne Haws, John C. Heredia and Sherman Davidson. Count I charged conspiracy in violation of Title 18, U.S.C. § 371. Counts II and III charged interstate transportation of funds obtained by fraud in violation of Title 18, U.S.C. §§ 2314 and 2. Count IV charged fraud by wire in contravention of Title 18, U.S.C. § 1343. On September 28, 1983, a superseding indictment was filed. The superseding indictment, however, did not differ significantly from the original indictment. The trial of all four defendants was originally set for June 27, 1983. On June 16, 1983, the government filed a Motion for a Continuance and Notice of No Objection. On July 12, 1983, the trial judge continued the trial to September 6, 1983. Following entry of the court’s order continuing the first trial setting, the court appointed new defense counsel for defendant, Robert Morgan. On about August 11, 1983, a hearing was had on the motion of the defendants Morgan and Davidson for continuance of the trial. On August 22, 1983, the trial court continued the trial from September 6, 1983, to October 31, 1983. At the hearing on August 11, 1983, the court set a discovery cut-off and motion cut-off date of August 31, 1983. On August 31, 1983, defendants Haws and Heredia filed motions to suppress direct and derivative evidence obtained in a search of premises located in Salt Lake City, Utah conducted on September 16, 1981 and any evidence obtained from an interview of the defendant Haws on May 5, 1983 at Provo, Utah. Defendants Haws and Heredia also filed motions for a bill of particulars, for a severance of trial from that of the co-defendants, Robert Morgan and Sherman Davidson on the grounds of antagonistic" }, { "docid": "23644668", "title": "", "text": "of privacy of a third party was even flagrantly violated. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Here, the trial court quite properly found there was no subjective expectation of privacy. The defendants neither owned nor possessed the items they sought to have suppressed. They had no right to control or exclude the use by others of the property or the premises. At best, the grounds for suppression by these defendants amount to an aspiration that incriminating evidence not be used against them. There was no error in denying the motion to suppress. Without a reasonable expectation of privacy being established, there is no need to proceed further to review questions of probable cause and sufficiency of the affidavit used to obtain the warrant. 5. Motion to Suppress a Tape Recording Found in the Search One of the items found in the search discussed in issue No. 4 was a cassette tape on which an inculpatory telephone conversation between Cardall, Morgan, Haws and Heredia had been recorded by Cardall. The defendants argue that this evidence should be suppressed on the separate ground that their expectation of privacy when conversing on the telephone was violated. The government responds that, while defendants do have a right not to have the conversation directly intercepted, they cannot complain if one of the participants records the conversation and later publishes it. The problem here is that Car-dad did not “publish” the tape himself; it was seized in a search. While the governments response is clearly inappropriate, the judge’s ruling was not. The appropriate response is that where one party to a conversation records it, the expectation of privacy in the recording rests with the possessor of the recording and not the other parties to the conversation. The issue, therefore, is the same as that discussed in issue No. 4 and is answered in the same way. There was no basis for granting the motion to suppress. 6. Motion for Severance Defendants Haws and Heredia moved for severance of their trial from Morgan’s on grounds that they would be" }, { "docid": "23644657", "title": "", "text": "case would be singled out for counsel and identified and made available for inspection, copying, interviews, etc. This additional material was to be made available by Friday, October 21, 1983, or Monday, October 24, 1983. In addition, government counsel indicated that responses to the motions of the various defendants, including motions for bills of particulars and motions for disclosure of discoverable evidence would be delivered to defense counsel and filed no later than October 20, 1983. On October 27, 1983, Haws, Heredia and Morgan filed yet more motions to continue the trial date. On October 28, 1983, all motions filed were heard. The court denied the several motions for continuance, denied the motions for severance, denied the motions for bills of particulars, denied the motions to suppress, denied the motion to dismiss the indictment, accepted a Stipulation of Counsel Re: the Motion in Limine of Defendant Morgan, and reserved ruling on the motion of Morgan for preclusion of evidence, including a diary of one Richard Taylor Cardall. On October 25, 1983, the fourth defendant in this action, Davidson, entered into a plea bargain with the United States Attorney. This case against him was dismissed. Davidson later appeared as a government witness at the trial. Defendants Haws, Heredia and Morgan raise eight points of error: 1. Denial of Motion for Continuance After granting two motions for continuance of trial (motions of July 12, 1983 and August 11, 1983), the court denied a third motion made on October 19, 1983. The grounds for all of these motions were that defense counsel needed more time to prepare for a case this complex. The court denied the third motion because it felt that defense counsel had been given enough time and that the case, while complex, did not become less so just by waiting longer. Accordingly, trial began on October 31, 1983. Appellants complaint that, although the government had an “open file” policy previously in effect, they were not told what exhibits the government would be using until October 19, and this did not give them enough time. While we do not approve in" }, { "docid": "23644656", "title": "", "text": "defenses, to identify, segregate and produce discoverable matter, for disclosure of impeaching information and for disclosure of exculpatory evidence. On August 30, 1983 Robert Morgan filed motions identical to those motions filed by Haws and Heredia and joined in the Haws and Heredia motions. (So, too, did Davidson.) In addition, Morgan filed a motion in limine to restrict introduction of evidence, motion in re: problems with discovery and motion for a preclusion order. On August 30, 1983, Haws, Heredia and Morgan moved for a continuance of the trial date of October 31, 1983. On October 19, 1983, the motions to continue trial came on for hearing. The motion was denied. The government attorneys Alba and Walz, indicated that by October 19, 1983, or October 20, 1983, all Jencks Act material (18 U.S.C. § 3500), all written material, all statements of witnesses interviewed by the government and intended to be called by the government and all exhibits in the evidence room of the United States Attorney’s Office intended to be introduced at the trial of the case would be singled out for counsel and identified and made available for inspection, copying, interviews, etc. This additional material was to be made available by Friday, October 21, 1983, or Monday, October 24, 1983. In addition, government counsel indicated that responses to the motions of the various defendants, including motions for bills of particulars and motions for disclosure of discoverable evidence would be delivered to defense counsel and filed no later than October 20, 1983. On October 27, 1983, Haws, Heredia and Morgan filed yet more motions to continue the trial date. On October 28, 1983, all motions filed were heard. The court denied the several motions for continuance, denied the motions for severance, denied the motions for bills of particulars, denied the motions to suppress, denied the motion to dismiss the indictment, accepted a Stipulation of Counsel Re: the Motion in Limine of Defendant Morgan, and reserved ruling on the motion of Morgan for preclusion of evidence, including a diary of one Richard Taylor Cardall. On October 25, 1983, the fourth defendant in" }, { "docid": "15778640", "title": "", "text": "further urges that the trial court should have granted his motion for severance based upon antagonistic defenses. In United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973), this court found an abuse of discretion by a trial judge for denying defendant-Johnson’s motions for severance where at every opportunity Smith, the co-defendant, and Smith’s attorney implicated Johnson. The prejudice requiring reversal was clear. An examination of the record fails to support any claims of prejudice in this case. Becker claimed through his witnesses that he was in the automobile recovery business and had done business with automobile insurers. Bynum’s testimony did not contradict this defense. Bynum stated he learned through Marshall Lineberger (the government’s witness) the cars he was leasing were stolen. At the same time, Bynum stated to Lineberger he would turn Becker in to the F.B.I. if he did not return his money. Lineberger’s response was he would “handle” Becker because he had “beaten him out of a lot of money.” By-num believed Becker was in the automobile leasing business. We find insufficient prejudice to compel a severance and, therefore, no abuse of discretion by the trial judge. Defendants Clark, Hester and Bynum contend Becker’s pro se representation and his conduct at trial gave rise to prejudice requiring mistrial or severance. In particular, defendant Bynum objects to questions asked of him during cross-examination by Becker. The questions concerned the trailer load of hams discussed above. Bynum was not required to answer the questions and the jury was instructed to disregard them. No further mention of the “hams” was made. We find any prejudice Becker’s improper questions might have caused was remedied by the court’s sustained objections and instructions to the jury to disregard them. Defendants Clark and Hester suggest Becker, who had elected to represent himself, was resigned to a conviction. They allege his cross-examination of government witnesses continually brought out incriminating facts and his cross examination of Bynum, the only defendant to take the stand, was so chilling and cutting as to cause the other defendants to refrain from testifying. After reviewing the record we again find" }, { "docid": "23644660", "title": "", "text": "On the contrary, we find the defense was vigorous and informed. 2. Motion for Bill of Particulars Defendants Haws and Heredia moved for a bill of particulars on August 31, 1983. The motion was denied at a hearing on October 28. Defendants insist the requested information was essential to allow them to put on a defense. The government replies that the information concerned evidentiary matters that need not be given out in advance of trial. For more than ample reasons, the granting or denial of a motion for bill of particulars is left to the discretion of the trial court. United States v. Moore, 556 F.2d 479 (10th Cir.1977). Absent a showing of prejudice, the denial of a motion for bill of particulars is not error. United States v. Crim, 527 F.2d 289, 293 (10th Cir.1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). This is so even where denial might be construed as an abuse of discretion. United States v. Lewis, 547 F.2d 1030 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977); United States v. Thevis, 474 F.Supp. 117, 123-24 (N.D.Ga.1979). A question arises whether abuse of discretion and a showing of prejudice are conceptually separable. This question has been blurred by the imprecision with which the courts have approached the issue. For instance, in United States v. Martino, 648 F.2d 367 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982), the court stated: Action on a motion for bill of particulars is committed to the sound discretion of the trial judge. We may reverse a ruling denying the motion only if a defendant demonstrates that he was ‘actually surprised at trial and thus incurred prejudice to his substantial rights by the denial.’ ... Id. at 383 (emphasis added; citation omitted). In Lewis, on the other hand, the court opined it “may reverse only upon a finding of clear prejudice and abuse of discretion.” Id. at 1033 (emphasis added). The difference between the Martino and Lewis approaches may seem insignificant at first blush, but" }, { "docid": "23644674", "title": "", "text": "portions of the diary. Many of the portions of the diary Morgan sought to admit were ruled admissible by the trial judge. The portions ruled inadmissible were not demonstrably relevant to the issues at trial. Under the doctrine of completeness embodied in Fed.R.Evid. 106, it is not required that portions of a writing which are neither explanatory of the previously introduced portions nor relevant to the introduced portions admitted. United States v. Marin, 669 F.2d 73 (2nd Cir.1982). It would be puerile to suggest that if any part of a statement is be admitted the entire statement must be admitted. Here the court determined the proffered portions were not sufficiently relevant to the issues at trial or to previously admitted sections of the diary to warrant admission. Such decisions are properly left to the trial judge. We hold he did not abuse his discretion in refusing to admit portions of the diary proffered by appellant Morgan. 8. Sufficiency of the Evidence In order to determine whether the evidence was sufficient to establish guilt beyond a reasonable doubt, the evidence must be viewed in the light most favorable to the government. We must determine whether there existed sufficient evidence, direct or circumstantial, together with the reasonable inferences drawn from that evidence, from which the jury may find a defendant guilty beyond a reasonable doubt. United States v. Parnell, 581 F.2d 1374, 1379 (10th Cir.1978). The record contains sufficient evidence from which such a finding could be made as to each defendant on each of the four counts. Each defendant participated in the conduct of FSI and its related entities. Morgan acknowledges he was an advisor to the FSI program, Haws admits he was responsible for transferring money run through the program based upon orders from Cardall and Morgan, and Heredia acknowledges he was to be a commodities trader in the program with the funds generated by the program. Heredia also acknowledges he received funds and returned them based upon the orders of Cardall. The crucial issue appears to be whether the evidence is sufficient to indicate a knowledge of the representations" }, { "docid": "23644675", "title": "", "text": "reasonable doubt, the evidence must be viewed in the light most favorable to the government. We must determine whether there existed sufficient evidence, direct or circumstantial, together with the reasonable inferences drawn from that evidence, from which the jury may find a defendant guilty beyond a reasonable doubt. United States v. Parnell, 581 F.2d 1374, 1379 (10th Cir.1978). The record contains sufficient evidence from which such a finding could be made as to each defendant on each of the four counts. Each defendant participated in the conduct of FSI and its related entities. Morgan acknowledges he was an advisor to the FSI program, Haws admits he was responsible for transferring money run through the program based upon orders from Cardall and Morgan, and Heredia acknowledges he was to be a commodities trader in the program with the funds generated by the program. Heredia also acknowledges he received funds and returned them based upon the orders of Cardall. The crucial issue appears to be whether the evidence is sufficient to indicate a knowledge of the representations made in the program and that those representations were false. The testimony of Greg Phay proves the knowledge of each of the appellants that the FSI program required that bonds be purchased with the client’s funds. In the tape introduced through his testimony, the three appellants and Cardall talked about transferring $450,000 from Salt Lake City to California. Cardall stated that although the contract requires that bonds be purchased with the money, he was not buying bonds with that money. Cardall also indicated that he was about three or four hundred thousand dollars in arrears on the purchase of bonds. During this conversation, Morgan indicated that they would come up with bonds on another turnaround. Those portions of the conversation conclusively attribute knowledge of the requirement that bonds be bought to all three of the appellants and also inform the appellants that bonds are not being purchased with the clients’ funds. In another part of the conversation, Cardall indicates that he has sent $93,000 more than he has received to Morgan and Haws. Morgan states" }, { "docid": "23162965", "title": "", "text": "on the fact that the other did not testify. The district court, however, did not abuse its discretion in rejecting this contention because the court would have had to speculate to assume that that situation might arise. Furthermore, the predicate for the possibility that one defendant might want to comment on the other defendant’s failure to testify, is that the commenting defendant testify himself. Obviously, if a defendant does not testify and yet comments on his co-defendant’s failure to testify, he is in reality commenting on his own failure to testify as well. In fact, since neither defendant testified, Thomson did not have reason to comment on Kost’s failure to testify. Thus, this particular problem which Thomson anticipated from a joint trial did not materialize and to this extent Thomson could not have possibly suffered prejudice by being tried jointly with Kost. Indeed, in his brief Thomson does not even urge that the district court abused its discretion because of its rejection of this theory for his motion. Therefore, in view of the developments at trial, even if the district court abused its discretion in rejecting this basis for pretrial severance, which it did not, its error was harmless. THE CLAIM OF TRIAL PREJUDICE In view of our analysis, we would be justified in not even addressing Thomson’s contentions that he was prejudiced at trial by the circumstance that Kost was charged with both conspiracy and conducting a continuing criminal enterprise and Thomson was charged with only conspiracy and was further prejudiced by the spillover effect of evidence relating to the continuing criminal enterprise charge. Inasmuch as these specific possibilities were not raised in the pretrial motions, we cannot understand how the district court could be held to have abused its discretion on the basis of them in denying the pretrial motion to sever. But we will nevertheless consider these contentions on the remote basis that perhaps the alleged trial prejudice, even in the absence of a motion to sever at trial, rose to the level of plain error. In the discussion of these claims of prejudice, we do not" }, { "docid": "18165050", "title": "", "text": "the fact that his codefendant testified while he did not, thereby emphasizing to the jury his failure to take the stand on self-incrimination grounds beyond the repair of any instructions. At no time before or during the trial, however, did Wilson argue to the court that severance should be granted because Rhone’s testimony would present Wilson with the trilemma of adopting it, disputing it, or remaining silent rather than make this choice. (Emphasis supplied.) 365 F.2d, at 981. In Rhone, supra, the court recognized the wide variety of circumstances that prejudice may result from in relation to joinder of defendants, i. e.: where one defendant makes an inculpatory statement inadmissible against a co-defendant [Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954)]; where defendants present conflicting and irreconcilable defenses and there is a danger the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty; and where one defendant testifies and urges the jury to draw an adverse inference from his co-defendant’s silence. In order to overcome the discretion of the trial court in granting or refusing a motion for severance, a party must demonstrate an abuse thereof working to his prejudice denying him a fair trial. Sullins v. United States, 389 F.2d 985 (10th Cir. 1968). There was no abuse of discretion and no demonstrated prejudice under the circumstances presented here. Neither Davis or Larry moved for an in camera hearing at the commencement of Linda’s testimony in order to ascertain whether her testimony would implicate or incriminate them or alert the trial court thereto. Furthermore, neither moved to quash or for mistrial. Under these circumstances, prejudicial error cannot be charged to the trial court. In United States v. Fersner, 416 F.2d 403 (4th Cir. 1969), cert. denied, 397 U.S. 954, 90 S.Ct. 982, 25 L.Ed.2d 137 (1970), the court ruled that because a co-defendant who testified was available for cross-examination by counsel for the defendant, there was no denial of discretion by the trial court in denying a motion for severance. A very thorough discussion of problems inherent in joinder" }, { "docid": "23644669", "title": "", "text": "Cardall. The defendants argue that this evidence should be suppressed on the separate ground that their expectation of privacy when conversing on the telephone was violated. The government responds that, while defendants do have a right not to have the conversation directly intercepted, they cannot complain if one of the participants records the conversation and later publishes it. The problem here is that Car-dad did not “publish” the tape himself; it was seized in a search. While the governments response is clearly inappropriate, the judge’s ruling was not. The appropriate response is that where one party to a conversation records it, the expectation of privacy in the recording rests with the possessor of the recording and not the other parties to the conversation. The issue, therefore, is the same as that discussed in issue No. 4 and is answered in the same way. There was no basis for granting the motion to suppress. 6. Motion for Severance Defendants Haws and Heredia moved for severance of their trial from Morgan’s on grounds that they would be prejudiced since there was more evidence against Morgan than against them. The motion was denied. On appeal, Haws and Heredia allege prejudice from the fact that they took the stand but Morgan did not. Defendants concede that the granting or denying of a motion to sever rests within the sound discretion of the trial court, United States v. Pilling, 721 F.2d 286, 297 (10th Cir.1983). As with the questions previously addressed concerning continuances and bills of particulars, defendants must show actual prejudice as well as abuse of discretion before a ruling can constitute reversible error. Defendants Haws and Heredia claim prejudice because they took the stand and Morgan did not. Such a scenario cannot amount to prejudice; it is neither law nor fact. Any defendant’s election to testify or remain silent is inconsequential. [We note there is no objection to the court’s instruction on this issue.] What might be of consequence would be the specific facts related in testimony given or not related because of testimony withheld. Again, we are unable to confront the issue" }, { "docid": "18789315", "title": "", "text": "enforcement officers, testified against the defendants. All defendants were convicted on both counts, with Martin and Taylor receiving two concurrent fifteen-year sentences, White receiving two concurrent six-year sentences and King receiving a six-month sentence for the conspiracy conviction and a suspended sentence and three years probation for kidnapping. All defendants except Willie Thomas filed notices of appeal. (Additional facts relevant to the particular allegations of error raised by appellants will be set forth as needed.) II. ISSUES Appellants raise the following issues: (A) whether the district court erred in denying the severance motions of King, Martin and Taylor; (B) whether the district court abused its discretion in denying White’s motion to suppress the statements he gave to Tampa police officers; (C) whether White’s conviction must be reversed due to the district court’s admission of alleged hearsay testimony; (D) whether the district court committed reversible error in denying, without a hearing, Martin’s motion to dismiss on the ground of selective prosecution; (E) whether the government’s characterization of Taylor as a “hit man” during closing argument requires reversal of his conviction; (F) whether the evidence was sufficient to support the convictions of King, Martin and White. III. ANALYSIS A. Severance (King, Martin and Taylor) Prior to trial King, Martin and Taylor filed motions for severance of their trials from those of their co-defendants, claiming they would be prejudiced in several respects by the joint trial. The district court denied these motions. Taylor renewed his motion just prior to the admission into evidence of a statement given by Willie Thomas that had been redacted to eliminate inculpatory references to co-defendants. As King’s motion to adopt the motions of her co-defendants had previously been granted, her severance motion was also effectively renewed. The motions were again denied. King, Martin and Taylor present several reasons why we should hold that the district court abused its discretion in denying severance. Fed.R.Crim.P. 14 allows a district court to grant severance of a defendant’s trial if it appears that prejudice to the defendant will follow from a joint trial. A motion for severance is addressed to the sound" }, { "docid": "18789316", "title": "", "text": "reversal of his conviction; (F) whether the evidence was sufficient to support the convictions of King, Martin and White. III. ANALYSIS A. Severance (King, Martin and Taylor) Prior to trial King, Martin and Taylor filed motions for severance of their trials from those of their co-defendants, claiming they would be prejudiced in several respects by the joint trial. The district court denied these motions. Taylor renewed his motion just prior to the admission into evidence of a statement given by Willie Thomas that had been redacted to eliminate inculpatory references to co-defendants. As King’s motion to adopt the motions of her co-defendants had previously been granted, her severance motion was also effectively renewed. The motions were again denied. King, Martin and Taylor present several reasons why we should hold that the district court abused its discretion in denying severance. Fed.R.Crim.P. 14 allows a district court to grant severance of a defendant’s trial if it appears that prejudice to the defendant will follow from a joint trial. A motion for severance is addressed to the sound discretion of the district court and will be reversed only if that discretion is abused. United States v. Pruitt, 763 F.2d 1256, 1263 (11th Cir.1985). The movant must show specific and compelling prejudice against which the district court was unable to afford protection. Id. The three defendants argue that the admission of the statements of co-defendants White and Willie Thomas inculpated them and denied their right of confrontation, in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Prior to the introduction of each statement and again just prior to deliberations, the district court cautioned the jury to consider each statement only with respect to the defendant who gave it. The statements were edited (“redacted”) to ensure that they did not implicate co-defendants. Nonetheless, appellants deny that they were provided sufficient protection against prejudice. They maintain that the district court therefore abused its discretion in denying their motions for severance. The defendants point out two ways they believe they were prejudiced by the introduction of White’s statement. They" }, { "docid": "1990325", "title": "", "text": "S.Ct. 1779, 84 L.Ed.2d 838 (1985). A defendant is not entitled to a severance simply because the proof is greater against a co-defendant. United States v. Warner, 971 F.2d 1189, 1196 (6th Cir.1992). When a defendant seeks a severance, he has a heavy burden of showing specific and compelling prejudice, and the denial of a motion to sever will be overruled on appeal only for a clear abuse of discretion. United States v. Causey, 834 F.2d 1277, 1287 (6th Cir.1987), cert. denied, 486 U.S. 1034, 108 S.Ct. 2019, 100 L.Ed.2d 606 (1988). Defendant points to nothing that demonstrates an abuse of the trial court’s discretion on this issue. Kilbourn’s first claim can be dismissed quickly. When he made his motion , for sev erance, Kilbourn was to have been tried along with Morgan and Harris. Thus, as a reason for severance, Kilbourn stated his inability to call Morgan as a witness because the two were to be tried together. Kilb-ourn’s motion was ultimately denied by the trial court. On the day of trial, however, Morgan’s trial was severed sua sponte by the trial court, and therefore Kilbourn was no longer unable to call his co-defendant as a witness. Kilbourn continues to argue this claim on appeal, but the sequence of events prior to his trial makes this argument unpersuasive. Co-defendants Morgan and Kilb-ourn did have their trials severed as Kilb-ourn wished, and simply because it was Morgan rather than Kilbourn whose trial was severed was of no consequence. Further, even assuming that the evidence was stronger against Harris than against Kilbourn, disparity of evidence is generally not enough to cause the granting of a separate trial. See Causey, 834 F.2d at 1287-88. As we previously have stated, “[t]he jury must be presumed capable of sorting out the evidence and considering the case of each defendant separately.” United States v. Warner, 690 F.2d 545, 553 (6th Cir.1982). In this ease, Kilbourn maintains that the evidence of Awdish’s relationship with Harris in 1987 prejudiced Kilbourn’s defense, for the jury was told of Harris’ significant drug use. We fail to see how this" }, { "docid": "23644667", "title": "", "text": "of the financial evidence.” The defense’s basic argument here is the same as that in the motion for continuance; i.e., that the trial was too complex for the defense to prepare adequately. For the same reasons previously stated, the point on appeal is rejected. 4. Motion to Suppress Evidence From a Search Defendants moved to suppress documents and a cassette tape found at FSI offices at Suite 201, 986 Atherton Drive in Salt Lake City. They argue that the search warrant was based on inadequate, conclusory allegations in an affidavit by FBI agent Loren Brooks. The government responds by arguing that the defendants had no Fourth Amendment standing to challenge the search. They had no “legitimate expectation of privacy” in either the premises or the items seized. It is a fundamental axiom of our jurisprudence that a defendant must have a cognizable expectation of privacy in the premises searched. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Indeed, it is not grounds for suppression at all that the reasonable expectation of privacy of a third party was even flagrantly violated. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Here, the trial court quite properly found there was no subjective expectation of privacy. The defendants neither owned nor possessed the items they sought to have suppressed. They had no right to control or exclude the use by others of the property or the premises. At best, the grounds for suppression by these defendants amount to an aspiration that incriminating evidence not be used against them. There was no error in denying the motion to suppress. Without a reasonable expectation of privacy being established, there is no need to proceed further to review questions of probable cause and sufficiency of the affidavit used to obtain the warrant. 5. Motion to Suppress a Tape Recording Found in the Search One of the items found in the search discussed in issue No. 4 was a cassette tape on which an inculpatory telephone conversation between Cardall, Morgan, Haws and Heredia had been recorded by" }, { "docid": "23644655", "title": "", "text": "trial judge continued the trial to September 6, 1983. Following entry of the court’s order continuing the first trial setting, the court appointed new defense counsel for defendant, Robert Morgan. On about August 11, 1983, a hearing was had on the motion of the defendants Morgan and Davidson for continuance of the trial. On August 22, 1983, the trial court continued the trial from September 6, 1983, to October 31, 1983. At the hearing on August 11, 1983, the court set a discovery cut-off and motion cut-off date of August 31, 1983. On August 31, 1983, defendants Haws and Heredia filed motions to suppress direct and derivative evidence obtained in a search of premises located in Salt Lake City, Utah conducted on September 16, 1981 and any evidence obtained from an interview of the defendant Haws on May 5, 1983 at Provo, Utah. Defendants Haws and Heredia also filed motions for a bill of particulars, for a severance of trial from that of the co-defendants, Robert Morgan and Sherman Davidson on the grounds of antagonistic defenses, to identify, segregate and produce discoverable matter, for disclosure of impeaching information and for disclosure of exculpatory evidence. On August 30, 1983 Robert Morgan filed motions identical to those motions filed by Haws and Heredia and joined in the Haws and Heredia motions. (So, too, did Davidson.) In addition, Morgan filed a motion in limine to restrict introduction of evidence, motion in re: problems with discovery and motion for a preclusion order. On August 30, 1983, Haws, Heredia and Morgan moved for a continuance of the trial date of October 31, 1983. On October 19, 1983, the motions to continue trial came on for hearing. The motion was denied. The government attorneys Alba and Walz, indicated that by October 19, 1983, or October 20, 1983, all Jencks Act material (18 U.S.C. § 3500), all written material, all statements of witnesses interviewed by the government and intended to be called by the government and all exhibits in the evidence room of the United States Attorney’s Office intended to be introduced at the trial of the" }, { "docid": "23644659", "title": "", "text": "any manner the cavalier way in which the government’s attorneys treated discovery, our analysis does not stop at this threshold. Indeed, this entire appeal could have been avoided or significantly simplified had the government’s attorneys cooperated with the court and appointed counsel by providing discovery in an organized manner at the earliest possible time. It is clear that motions for continuance are addressed to the discretion of the trial court. Even if the defense is given a large amount of material to prepare in a short time, a showing of clear abuse of discretion resulting in manifest injustice is required before there can be reversal. United States v. Gonzales-Palma, 645 F.2d 844, 846-47 (10th Cir.1981). Here there is no showing that the ability of counsel to be effective was at all affected by the denial of the third motion for continuance. cf., United States v. King, 664 F.2d 1171 (10th Cir.1981). We have scrutinized the entire record with a view to determining whether there was prejudice to the defendants and whether the trial suggested unfairness. On the contrary, we find the defense was vigorous and informed. 2. Motion for Bill of Particulars Defendants Haws and Heredia moved for a bill of particulars on August 31, 1983. The motion was denied at a hearing on October 28. Defendants insist the requested information was essential to allow them to put on a defense. The government replies that the information concerned evidentiary matters that need not be given out in advance of trial. For more than ample reasons, the granting or denial of a motion for bill of particulars is left to the discretion of the trial court. United States v. Moore, 556 F.2d 479 (10th Cir.1977). Absent a showing of prejudice, the denial of a motion for bill of particulars is not error. United States v. Crim, 527 F.2d 289, 293 (10th Cir.1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). This is so even where denial might be construed as an abuse of discretion. United States v. Lewis, 547 F.2d 1030 (8th Cir.1976), cert. denied, 429 U.S." } ]

[ { "docid": "4880124", "title": "", "text": "MEMORANDUM AND ORDER WARREN, District Judge. The defendant in the above-entitled action has moved to dismiss Count I of this action on several grounds as set forth in its memorandum. The initial basis for the motion is that Count I of the complaint is barred by the applicable statute of limitations. At a status conference held in this matter on November 17, 1977, the Court issued a memorandum and order in the related ease of Colonial Bank and Trust Co. v. American Bankshares Corp., 442 F.Supp. 234 (E.D.Wis.1977). That decision held that Wis.Stats. § 551.59(5) was the statute of limitations applicable to a § 10b-5 action arising in this state. The above decision is incorporated herein. The Court also informed the plaintiff that it would take judicial notice of the pleadings filed in the case of Colonial Bank and Trust Co. v. American Bankshares, Civil Action No. 75-C-638, [hereinafter referred to as Case No. 75-C-638] a case also pending before this Court. The effect of taking judicial notice of this matter was to convert the instant motion to one for summary judgment. See Grand Opera Co. v. Twentieth Century-Fox Film Corp., 235 F.2d 303, 307 (7th Cir. 1956). The plaintiff was, therefore, granted an additional thirty days to respond to the motion. Section 551.59(5) of the Wisconsin Statutes provides that: No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires The act or transaction constituting the violation in question occurred on May 16, 1974, exactly three years prior to the filing of the complaint. There is no contention that the first part of § 551.59(5) bars this action. The defendant contends, however, that the plaintiff in this action discovered the facts constituting the violation prior to May 17, 1976, and since this action was not commenced until May 17, 1977, it is barred. Specifically, the defendant contends that the discovery of the fraud occurred when the plaintiff appeared" } ]

[ { "docid": "3030791", "title": "", "text": "Exchange Act of 1934 and SEC Rule 10b-5 thereunder. The district court granted the defendant’s motion for summary judgment, finding that the action was time-barred, 448 F.Supp. 84 (E.D.Wis.1978).- The complaint was filed on May 17, 1977; defendant claimed the action was barred by the period of limitations contained in section 551.59(5) of the Wisconsin Statutes, which requires actions to be commenced within one year after discovery of the misrepresentation or within three years after the act itself, whichever expires first. The district court held that the action was time-barred because “discovery of the fraud occurred when the plaintiff appeared in [a prior case ] by answering the complaint therein on January 22, 1976.” 448 F.Supp. at 86. The district court held that Count I of the complaint resembled a cause made actionable by section 551.59 of the Wisconsin Statutes, so that the one-to-three year statute of limitations set out in that section applied. We vacated the summary judgment and remanded the cause for further proceedings because the plaintiff had failed to argue before the district court that Count I more closely resembled a cause actionable under section 551.41 of the Wisconsin Statutes, which might require application of a different statute of limitations. Unpublished order in Appeal No. 78-1576, September 26, 1978. Upon remand, the district court held that further proceedings and consideration led to the same result, namely that the Wisconsin one-to-three year security act limitation applied to Count I and hence that the count was time-barred. 478 F.Supp. 1186 (EJD. Wis.1979). The plaintiff has again appealed. II Since no statute of limitations is provided for civil actions under section 10(b) of the Securities Exchange Act of 1934, the federal courts apply the limitation period applicable to the forum state’s most closely analogous state law cause of action. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n. 29, 96 S.Ct. 1375, 1389, 47 L.Ed.2d 668 (1976). Consequently, the Seventh Circuit has held that a section 10(b) action brought in Illinois is governed by the three-year statute of limitations of the Illinois Securities Law. Parrent v. Midwest Rug Milis," }, { "docid": "704292", "title": "", "text": "relative to its potential acquisition of a share interest in Wisconsin Marine? “A [Mr. Trecker]: Well, the name Ransomes Sims came up following that hearing that Hugh [Braun] attended. You know, he discussed it with me.” Tr. at 31. For these reasons, I find that the plaintiff discovered the facts which are now belatedly claimed to be the basis of a federal securities violation at least by June 26, 1978. Under the applicable statute of limitations, he then had one year to file this action. Since the complaint was not filed until August 30, 1979, the action is barred by the statute of limitations and must be dismissed. See Colonial Bank & Trust Co. v. American Bankshares Corp., 478 F.Supp. 1186 (E.D.Wis.1979); Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899, 905-07 (E.D.Wis.1978). Therefore, IT IS ORDERED that the defendants’ motion for summary judgment be and hereby is granted. IT IS ALSO ORDERED that the pending motions relative to discovery be and hereby are dismissed as moot. IT IS FURTHER ORDERED that this action be and hereby is dismissed." }, { "docid": "506401", "title": "", "text": "need not consider the other points raised by the defendants in opposition to plaintiff’s motion. Plaintiff’s claims arising under §§ 11 and 12(2) of the 1933 Act are governed by the statute of limitations set forth in 15 U.S.C. § 77m, which provides: “No action shall be maintained to enforce any liability created under section 77k or 777(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence * * * . In no event shall any such action be brought to enforce a liability created under section 77k or 777(1) of this title more than three years after the security was bona fide offered to the public, or under section 777(2) of this title more than three years after the sale.” Her claim under § 10(b) of the 1934 Act and Rule 10b-5 is governed by the most closely analogous state statute of limitations, which in this case is the Wisconsin “Blue Sky” law, § 551.59(5), Wis.Stats. (1971), which provides: “(5) No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires * * See Kramer v. Loewi & Co., Inc., 357 F.Supp. 83, 87 (E.D.Wis.1973). Plaintiff argues that the holding in Kramer is incorrect in view 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), and that the longer period of limitation set forth in § 893.19(7), Wis.Stats. (1973), which governs fraud actions, should apply to Count 1 of the first amended complaint. In LaRosa Building Corporation v. The Equitable Life Assurance Society of the United States, 542 F.2d 990 (7th Cir. 1976), decided subsequent to Ernst & Ernst, the United States Court of Appeals for the Seventh Circuit upheld its earlier decision in Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123" }, { "docid": "3030801", "title": "", "text": "policy stated in its securities law: This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact the “Uniform Securities Act” and to coordinate the interpretation and administration of this chapter with related federal regulation. Wis.Stat. § 551.67 [emphasis added]. Even if a private right of action could, contrary to the interpretation of Wisconsin district judges, be implied from section 551.-41, and even if a second implication could be made bringing in the catch-all limitation, it is highly questionable whether we should adopt that limitation period as a matter of policy. The relatively long-standing interpretation of local law repeated on numerous occasions by federal judges experienced in the law of Wisconsin should be given great weight. Finally, parties to litigation within this circuit have become accustomed since 1972 to our adoption of state securities law limitations in section 10(b) cases. For us to change the applicable limitation period without good and substantial cause would add an unnecessary uncertainty to the prosecution of federal claims under section 10(b). See IDS Progressive Fund, Inc. v. First of Michigan Corp., 533 F.2d 340, 343 (6th Cir. 1976). The judgment of the district court is affirmed. . Counts II and III of the complaint were dismissed earlier but are not involved in this appeal. . Section 551.59(5) of the Wisconsin Statutes provides, in pertinent part: No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires . Case No. 75-C-638, in the Eastern District of Wisconsin, filed on November 3, 1975, was entitled Colonial Bank and Trust Co. v. American Bankshares Corp. and was also pending before the court below. In the Colonial Bank case, the plaintiff asserted a 10b-5 claim against both the defendant and the plaintiff in the present case. . Section 551.59 of the Wisconsin Statutes provides: (1) Any person who: a) offers or sells a security in violation" }, { "docid": "13572933", "title": "", "text": "of Limitations In suits brought under Section 10(b) and Rule 10b-5 state statutes of limitations are incorporated as the content of federal common law, Morgan v. Koch, 419 F.2d 993, 996-997 (7th Cir. 1969), but federal principles of equitable tolling determine when a limitations period begins to run, Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743. In a typical case, the Rule 10b-5 plaintiff will have, e.g, three years within which to sue, but concealment or ignorance of the violation can extend the time period. The applicable Wisconsin statute is somewhat different: No action shall be maintained under this section unless commenced before the expiration of three years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting a violation, whichever first expires * * * (emphasis supplied). Wis.Stat.Ann. 551.59(5) Here federal tolling doctrines are applicable at two points. They may extend the three-year period, even though the Wisconsin statute makes that an absolute limitation. Or they may supply a federal gloss to the term “discovery” in the foregoing alternate limitation. It is the latter function that is important in this case, because Trecker’s suit is concededly governed by the second, rather than the first, prong of the Wisconsin statute. The statutory language necessitates two inquiries: what is the violation and when was it discovered? The district judge defined the violation as the failure to disclose negotiations with Ransomes before the final judgment (May 17, 1978) in the state court action. 500 P.Supp. at 754. We agree. Trecker has argued, in the district court and here, that the violation did not occur until September of 1979, when Ransomes lost its ability to rescind the entire transaction. But the Rule 10b-5 suit was filed in August of 1979, and it would be anomalous to treat the violation as postdating the complaint. The more difficult question is when the violation was discovered. The district judge granted summary judgment on the limitations issue because he was persuaded that Trecker knew that he had a cause of" }, { "docid": "704288", "title": "", "text": "2132, 48 L.Ed.2d 757 (1976). Accordingly, I reject the defendants’ contention that the Ransomes negotiations were immaterial. However, I believe summary judgment must be entered against the plaintiff because the complaint in this action was not timely filed. The statute of limitations applicable to the plaintiff’s federal securities fraud claims is to be derived from the state’s security statute. La Rosa Building Corp. v. Equitable Life Assurance Society of the United States, 542 F.2d 990 (7th Cir. 1976). Chapter 551 of the Wisconsin Statutes contains the Wisconsin Uniform Securities Law. Section 551.59(5) of that chapter provides: “No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires, . . .. ” The complaint in this case was filed on August 30, 1979. The issues to be decided are: What act or transaction constituted the violation, and when did the plaintiff discover such act or transaction? The plaintiff concedes that the “failure to disclose negotiations with Ransomes... constitutes the basis of the Trecker claim.... ” Plaintiff’s brief at p. 15. However, the plaintiff then argues that it was the sale of stock to Ransomes that constituted the violation and that the sale was not finally consummated until September 7, 1979; Mr. Trecker hopes to avoid any statute of limitations problem by establishing the latter date as the date of violation. This contention by the plaintiff must be rejected. In my view, the violation, if one there was, occurred during the period that the negotiations with Ransomes were underway, up to May 17, 1978, when the state court held that Mr. Trecker became a creditor of WMI in December 1976. The plaintiff’s theory in this case is that it was the failure to disclose these negotiations that constituted a fraud under the federal securities laws; when the stock sale to Ransomes was concluded is therefore irrelevant. The next question is when did the plaintiff discover the negotiations between Ransomes and WMI." }, { "docid": "18365339", "title": "", "text": "clarified this issue in the six-year time span since the decision was rendered. In conclusion, the Court finds that the statute of limitations appropriate to a section 10b and rule 10b-5 violation is contained in section 551.59(5) of the Wisconsin Statutes. The complaint in civil action 77-C-294 was filed on May 17, 1977. Plaintiff’s discovery of the fraud occurred when plaintiff appeared in Colonial Bank & Trust Co. v. American Bankshares Corp., Civil Action 75-C-638 by answering the complaint therein on January 22, 1976. Plaintiff did not file civil action 77-C-294 within the time period specified in section 551.59(5), which requires actions to be commenced within one year after discovery of the misrepresentation. (See Court’s memorandum and order of March 14, 1978 in Civil Action 77-C-294.) Therefore, defendant’s motion for summary judgment on Count I in civil action 77-C-294 is hereby granted. As to the claims in counts II and III in this case, the Court finds a lack of subject matter jurisdiction. The dismissal of the federal causes of action resolves the issue of pendent jurisdiction against the plaintiff. With respect to civil action 77-C-289, the Court ruled on March 21, 1978 that the statute of limitations began to run when Mr. Fox, not his assignee, discovered the violation. In an affidavit filed on June 5, 1978, Mr. Fox stated that he received a copy of the complaint in the case of Stern v. American Bankshares Corp., 429 F.Supp. 818 (E.D.Wis.) and read and familiarized himself with same before January 20, 1976 (Fox Affid, ¶ 2). Section 551.59(5) provides that no action can be maintained unless commenced before the expiration of three years after the transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires. Because Mr. Fox had knowledge of the alleged violation more than one year before the complaint was filed on May 16, 1977, count I in civil action 77-C-289 is time-barred. Count II of the complaint must likewise be dismissed because the Court lacks subject matter jurisdiction." }, { "docid": "19110797", "title": "", "text": "of the information revealed on the face of the tender offer and the plaintiffs’ immediate suspicions, their year began to run on receipt of the September 28, 1979 offer. They did not file suit until July 21, 1981, and their suit therefore is barred. In sum, [Wis.Stats.] § 551.59(5) does not allow a year to file suit after the conclusion of a diligent investigation. It allows a year in total in which to make such investigation after receipt of suffi- 539 F.Supp. at 502. The court then went on to dismiss the plaintiffs’ contentions that the doctrine of equitable tolling applied, that settlement negotiations that begin after more than a year estopped the defendants to raise the statute of limitations defense, and that they needed further discovery before the court could rule on the summary judgment motions. III. THE APPEAL On appeal, the plaintiffs first allege that it is improper to dispose of statute of limitations issues in securities cases by summary judgment. Our case law demonstrates conclusively that there is no such procedural impediment to the granting of summary judgment. In a number of securities cases where the motive and intent of the defendants were in issue, courts within this circuit have held that summary judgment was inappropriate. See, e.g., Staren v. American National Bank & Trust Co., 529 F.2d 1257, 1261 (7th .Cir.1976); Tomera v. Galt, 511 F.2d 504, 510 (7th Cir.1975); Kramer v. Loewi & Co., 357 F.Supp. 83, 88 (E.D.Wis.1973). The explanation for these holdings lies not in the fact that the complaints alleged securities violations but in the realization that issues of the defendants’ motive and intent cannot be determined prior to complete discovery and, in most instances, a trial on the merits. On the other hand, the issue of the plaintiffs’ due diligence in discovering facts underlying a securities claim is, under certain circumstances, amenable to disposition by summary judgment. Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899, 907 (E.D.Wis.1978); Cahill v. Ernst & Ernst, 448 F.Supp. 84, 88 (E.D.Wis.), vacated, 588 F.2d 835 (7th Cir.1978), on remand, 478 F.Supp. 1186, 1191 (E.D.Wis.1979)," }, { "docid": "19110798", "title": "", "text": "to the granting of summary judgment. In a number of securities cases where the motive and intent of the defendants were in issue, courts within this circuit have held that summary judgment was inappropriate. See, e.g., Staren v. American National Bank & Trust Co., 529 F.2d 1257, 1261 (7th .Cir.1976); Tomera v. Galt, 511 F.2d 504, 510 (7th Cir.1975); Kramer v. Loewi & Co., 357 F.Supp. 83, 88 (E.D.Wis.1973). The explanation for these holdings lies not in the fact that the complaints alleged securities violations but in the realization that issues of the defendants’ motive and intent cannot be determined prior to complete discovery and, in most instances, a trial on the merits. On the other hand, the issue of the plaintiffs’ due diligence in discovering facts underlying a securities claim is, under certain circumstances, amenable to disposition by summary judgment. Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899, 907 (E.D.Wis.1978); Cahill v. Ernst & Ernst, 448 F.Supp. 84, 88 (E.D.Wis.), vacated, 588 F.2d 835 (7th Cir.1978), on remand, 478 F.Supp. 1186, 1191 (E.D.Wis.1979), affirmed, 625 F.2d 151 (7th Cir.1980). See also Ohio v. Peterson, Lowry, Rail, Barber & Ross, 472 F.Supp. 402, 410 (D.Colo. 1979), affirmed, 651 F.2d 687 (10th Cir. 1981) (collected cases at 692 n. 9), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209. According to the court below, the dispositive factor in the statute of limitations controversy was the state of mind of the plaintiffs. If we uphold the district court’s opinion with respect to the expiration of the statute of limitations, therefore, the defendants’ motive and intent are irrelevant, overcoming the often restricted availability of summary judgment in securities cases. Having decided that summary judgment is available to the defendants in this case, we come then to the question of whether the district court erred when it granted summary judgment to the defendants based upon the plaintiffs’ deposition testimony. Under the federal gloss to the Wisconsin statute of limitations developed to determine the commencement of the limitations period, the applicable one-year period begins to run as of the date the plaintiffs" }, { "docid": "506402", "title": "", "text": "Sky” law, § 551.59(5), Wis.Stats. (1971), which provides: “(5) No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires * * See Kramer v. Loewi & Co., Inc., 357 F.Supp. 83, 87 (E.D.Wis.1973). Plaintiff argues that the holding in Kramer is incorrect in view 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), and that the longer period of limitation set forth in § 893.19(7), Wis.Stats. (1973), which governs fraud actions, should apply to Count 1 of the first amended complaint. In LaRosa Building Corporation v. The Equitable Life Assurance Society of the United States, 542 F.2d 990 (7th Cir. 1976), decided subsequent to Ernst & Ernst, the United States Court of Appeals for the Seventh Circuit upheld its earlier decision in Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), wherein it held that a district court should apply the state security rather than the state fraud statute of limitations to actions brought pursuant to § 10(b) of the 1934 Act. It did so for the reason, among others, that the district court should apply the state statute of limitations which most closely tracks the express limitation periods which are set out in the federal securities acts. 542 F.2d at 992. This Court is bound by the decision in LaRosa and, therefore, holds that § 551.59(5), Wis. Stats., governs the plaintiff’s claim in Count I. See also Colonial Bank & Trust Co. v. American Bankshares Corporation, 439 F.Supp. 797 (E.D.Wis.1977). Plaintiff concedes that if the federal claims are barred by the statutes of limitations, she cannot proceed with the pendent state claims. See United Mine Workers v. Gibbs, 353 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1965); Hupp v. Gray, 500 F.2d 993 (7th Cir. 1974). She further concedes that because she seeks to add parties defendant to her action," }, { "docid": "13620009", "title": "", "text": "violations applies to § 10(b) cases. Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 455 (7th Cir.1987). Counts 6 and 7 allege violations of the Wisconsin counterparts to § 12(1) of the 1933 Act and § 10(b) of the 1934 Act, Wis. Stat. § 551.21(1) and § 551.41(1)(2)(3). Count 8 alleges a violation of an order of the Wisconsin Securities Commissioner, as prohibited by Wis.Stat. § 551.59(1)(a). The relevant statute of limitations is found in Wis.Stat. § 551.59(5). Prior to April 27, 1984, § 551.59(5) provided that no cause of action could be maintained: Unless commenced before the expiration of three years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever expires first.... The one-year discovery rule was eliminated on April 27, 1984. Securities were purchased in this case from 1980 through October 18, 1984. As to claims relating to unregistered securities sold or misrepresentations made before April 27, 1984, plaintiffs were required to file a lawsuit before the expiration of the earlier of three years from the date of the violation or one year from the date they discovered the violation. As previously noted, plaintiffs allege that they did not discover any violation until after this suit was commenced. Once again, it appears that the three-year limitations period may have expired on some plaintiffs’ claims before suit was filed. Specifically, the suspect claims are those based on purchases or misrepresentations that occurred between 1980 and October 4, 1982. Those too will be revealed by a more definite statement. As to claims relating to illegal sales or misrepresentations made after the amendment of the statute, there is no statute of limitations problem. Suit was filed within three years of any such violation. FED.R.CIV.P. 9(b) Defendants have also moved to dismiss counts 2, 4, 7 and 14 because they fail to comport with Fed.R.Civ.P. 9(b), requiring that averments of fraud be stated with particularity. Defendants argue that plaintiffs were required and have failed to allege the specific misrepresentations they relied upon, when the" }, { "docid": "19110799", "title": "", "text": "affirmed, 625 F.2d 151 (7th Cir.1980). See also Ohio v. Peterson, Lowry, Rail, Barber & Ross, 472 F.Supp. 402, 410 (D.Colo. 1979), affirmed, 651 F.2d 687 (10th Cir. 1981) (collected cases at 692 n. 9), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209. According to the court below, the dispositive factor in the statute of limitations controversy was the state of mind of the plaintiffs. If we uphold the district court’s opinion with respect to the expiration of the statute of limitations, therefore, the defendants’ motive and intent are irrelevant, overcoming the often restricted availability of summary judgment in securities cases. Having decided that summary judgment is available to the defendants in this case, we come then to the question of whether the district court erred when it granted summary judgment to the defendants based upon the plaintiffs’ deposition testimony. Under the federal gloss to the Wisconsin statute of limitations developed to determine the commencement of the limitations period, the applicable one-year period begins to run as of the date the plaintiffs know or, in the exercise of due-diligence, should know of facts sufficient to put them on notice that a fraud had occurred. Cahill v. Ernst & Ernst, 448 F.Supp. at 87. That the plaintiffs now claim that they did not discover the “full enormity” of the alleged fraud until later does not delay the beginning of the one-year limitations period. Klein v. Bower, 421 F.2d 338, 343 (2d Cir.1970). As the district court correctly noted, 539 F.Supp. at 502, the running of the statute of limitations does “not await appellant’s leisurely discovery of the full details of the alleged scheme.” Klein v. Bower, 421 F.2d at 343 (quoted with approval in Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. at 906). The principal complaint of the plaintiffs is that they never had an opportunity to conduct discovery. After both plaintiffs gave their depositions, it is true that their own discovery yielded only very few documents, objections to further production, and refusals by the defendants to allow the plaintiffs to depose them, pending resolution of the" }, { "docid": "704291", "title": "", "text": ".for in round numbers, $800 a share. Now isn’t that remarkable that on the day that Trecker surrenders it, Scag sells it to a British company for twice its value or twice what he paid Trecker for it.....[T]hey are replacing Trecker’s capital with the capital of a British firm but they are making that British firm in effect pay Scag $800 a share for Trecker’s stock. It seems to me to be run away injustice.... “Mr. Koch: ... I’ve got this contract that I’m going to have $625,000 poured into the company.” Tr. at 392, 402, 406, 420. The above information which was possessed by the plaintiff’s attorney is imputed to Mr. Trecker by operation of law. See Wauwatosa Realty Co. v. Bishop, 6 Wis.2d 230, 94 N.W.2d 562 (1959). Also, the plaintiff admitted in his deposition that he had discussed matters which were raised at the June 22nd hearing with his attorney shortly thereafter: “Q [Mr. Gibbs]: When did you first learn that there was in negotiation any kind of arrangement with Ransomes Sims relative to its potential acquisition of a share interest in Wisconsin Marine? “A [Mr. Trecker]: Well, the name Ransomes Sims came up following that hearing that Hugh [Braun] attended. You know, he discussed it with me.” Tr. at 31. For these reasons, I find that the plaintiff discovered the facts which are now belatedly claimed to be the basis of a federal securities violation at least by June 26, 1978. Under the applicable statute of limitations, he then had one year to file this action. Since the complaint was not filed until August 30, 1979, the action is barred by the statute of limitations and must be dismissed. See Colonial Bank & Trust Co. v. American Bankshares Corp., 478 F.Supp. 1186 (E.D.Wis.1979); Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899, 905-07 (E.D.Wis.1978). Therefore, IT IS ORDERED that the defendants’ motion for summary judgment be and hereby is granted. IT IS ALSO ORDERED that the pending motions relative to discovery be and hereby are dismissed as moot. IT IS FURTHER ORDERED that this action be" }, { "docid": "13620008", "title": "", "text": "their fraud. Plaintiffs instead simply allege that they were not and could not have become aware of it, despite the exercise of reasonable diligence. While that allegation is sufficient, plaintiffs have the burden of proving that they exercised reasonable care and diligence in seeking to learn the facts which would disclose fraud. Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 456 (7th Cir.1987). In summary, some of plaintiffs’ claims may be dismissed because they were filed after expiration of the three-year “outside limit” on § 12(2) actions. Those claims will be revealed after plaintiffs file their statement alleging the dates of the relevant transactions. As to the remainder of the § 12(2) claims, I cannot say that they are not timely, based on plaintiffs’ allegations regarding discovery of the fraud. Counts Ip, 6, 7 and 8 Count 4 alleges a violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and the related SEC Rule 10(b)-5. It is established that the limitations period for state securities law violations applies to § 10(b) cases. Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 455 (7th Cir.1987). Counts 6 and 7 allege violations of the Wisconsin counterparts to § 12(1) of the 1933 Act and § 10(b) of the 1934 Act, Wis. Stat. § 551.21(1) and § 551.41(1)(2)(3). Count 8 alleges a violation of an order of the Wisconsin Securities Commissioner, as prohibited by Wis.Stat. § 551.59(1)(a). The relevant statute of limitations is found in Wis.Stat. § 551.59(5). Prior to April 27, 1984, § 551.59(5) provided that no cause of action could be maintained: Unless commenced before the expiration of three years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever expires first.... The one-year discovery rule was eliminated on April 27, 1984. Securities were purchased in this case from 1980 through October 18, 1984. As to claims relating to unregistered securities sold or misrepresentations made before April 27, 1984, plaintiffs were required to file a lawsuit" }, { "docid": "704287", "title": "", "text": "withdraw his redemption demand prior to February 21, 1978, when the state court granted specific performance of the stock repurchase agreement. As the plaintiff has cogently demonstrated, this element of choice is what distinguishes this case from Toledo Trust Co. v. Nye, 588 F.2d 202 (5th Cir. 1978), and St. Louis U. Trust Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 562 F.2d 1040 (6th Cir. 1977), and brings the case closer to Ayres v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 538 F.2d 532 (3rd Cir. 1976). Moreover, the defendants have not cited any authority contradicting the plaintiff’s contention that he could have dropped his redemption demand, and my own research has not produced any such authority. I am satisfied that the question whether the negotiations with Ransomes “would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available” is essentially a question of fact not susceptible to resolution on summary judgment. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). Accordingly, I reject the defendants’ contention that the Ransomes negotiations were immaterial. However, I believe summary judgment must be entered against the plaintiff because the complaint in this action was not timely filed. The statute of limitations applicable to the plaintiff’s federal securities fraud claims is to be derived from the state’s security statute. La Rosa Building Corp. v. Equitable Life Assurance Society of the United States, 542 F.2d 990 (7th Cir. 1976). Chapter 551 of the Wisconsin Statutes contains the Wisconsin Uniform Securities Law. Section 551.59(5) of that chapter provides: “No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires, . . .. ” The complaint in this case was filed on August 30, 1979. The issues to be decided are: What act or transaction constituted the violation, and when did the plaintiff discover such act or" }, { "docid": "19110795", "title": "", "text": "under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires ____” Wis.Stats. § 551.59(5). Because the plaintiffs filed suit in July 1981, the suit is well within three years of the September 1979 offer letter. Consequently, the court had to determine when the plaintiffs discovered the facts constituting the violation. From the date of that discovery, the plaintiffs had one year in which to bring their suit. The defendants submitted transcripts of the plaintiffs’ depositions in support of their motions for summary judgment. The court relied upon those depositions as well as the exhibits attached to the plaintiffs’ complaint, including the offer letter, to determine when the plaintiffs obtained sufficient information to begin the running of the statute of limitations. Both plaintiffs testified at their depositions that they received the offer letter within one week of its issuance and that they immediately knew that the price was too low. The court reiterated that the offer stated that future dividends would suffer because of the redemption, that the marketability of minority-held Vilter stock might decline, and that the majority might achieve absolute control of the corporation’s future if a sufficient number of shares were tendered. The elder Gieringer testified that, upon receipt of the offer, he immediately called his accountant and several lawyers to determine how he should proceed. As a result of the record before him, the trial judge concluded: [Tjhere is no question but that the plaintiffs knew on receipt of the tender offer that the price offered was unjust and merited further investigation, even if they did not know all of the details of the supposed scheme of the controlling shareholders. The law does not require full knowledge of a scheme or its consequences. It requires only sufficient knowledge to put a reasonable person on notice of the need for diligent investigation ____ cient information to put a party on notice of possible fraud and to commence legal proceedings. In light" }, { "docid": "18365338", "title": "", "text": "statute of limitations in 551.59(5) applies is also consistent with the established federal policy favoring shorter statute of limitations in securities actions. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972). Finally, the Court’s decision is strengthened by the strong precedent of Kramer v. Loewi & Co., Inc., 357 F.Supp. 83 (E.D.Wis.1973). In that case, Judge John Reynolds ruled that section 551.59(5) was applicable to actions asserted under section 10(b). The Kramer decision was rendered prior to the Supreme Court decision in Ernst & Ernst v. Hochfelder, supra, 425 U.S. 185, 96 S.Ct. 1375 (1976) and was based in part on the then existing law that negligence could form the basis of a section 10(b) violation. However, the analysis used by Judge Reynolds is still applicable and the case has not been overruled. Furthermore if the Wisconsin Legislature had decided that the Court’s ruling was an erroneous interpretation of the legislature’s intentions, the legislature could have clarified this issue in the six-year time span since the decision was rendered. In conclusion, the Court finds that the statute of limitations appropriate to a section 10b and rule 10b-5 violation is contained in section 551.59(5) of the Wisconsin Statutes. The complaint in civil action 77-C-294 was filed on May 17, 1977. Plaintiff’s discovery of the fraud occurred when plaintiff appeared in Colonial Bank & Trust Co. v. American Bankshares Corp., Civil Action 75-C-638 by answering the complaint therein on January 22, 1976. Plaintiff did not file civil action 77-C-294 within the time period specified in section 551.59(5), which requires actions to be commenced within one year after discovery of the misrepresentation. (See Court’s memorandum and order of March 14, 1978 in Civil Action 77-C-294.) Therefore, defendant’s motion for summary judgment on Count I in civil action 77-C-294 is hereby granted. As to the claims in counts II and III in this case, the Court finds a lack of subject matter jurisdiction. The dismissal of the federal causes of action resolves the issue of" }, { "docid": "19110800", "title": "", "text": "know or, in the exercise of due-diligence, should know of facts sufficient to put them on notice that a fraud had occurred. Cahill v. Ernst & Ernst, 448 F.Supp. at 87. That the plaintiffs now claim that they did not discover the “full enormity” of the alleged fraud until later does not delay the beginning of the one-year limitations period. Klein v. Bower, 421 F.2d 338, 343 (2d Cir.1970). As the district court correctly noted, 539 F.Supp. at 502, the running of the statute of limitations does “not await appellant’s leisurely discovery of the full details of the alleged scheme.” Klein v. Bower, 421 F.2d at 343 (quoted with approval in Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. at 906). The principal complaint of the plaintiffs is that they never had an opportunity to conduct discovery. After both plaintiffs gave their depositions, it is true that their own discovery yielded only very few documents, objections to further production, and refusals by the defendants to allow the plaintiffs to depose them, pending resolution of the .motions for summary judgment. Yet, in all the briefing before this court and the court below, the plaintiffs have failed to indicate how further discovery that they might conduct could elicit evidence that would enable them to resist summary judgment. This is not a case where the facts necessary to defeat summary judgment were in the hands of the movants, here the defendants. Cf. Costlow v. United States, 552 F.2d 560, 564 (3d Cir.1977) (reversing summary judgment in Federal Tort Claims Act case). The plaintiffs were the only people who would possibly be in possession of information sufficient to counter the inferences of a lack of due diligence found in their depositions. They did not need further discovery to achieve that purpose. The plaintiffs allege in their briefs that they needed discovery to establish the factual predicate for the theory of equitable tolling and to show that the defendants were estopped to assert the statute of limitations. The plaintiffs fundamentally misconstrue the nature of these two doctrines. Under the theory of equitable tolling, a statute" }, { "docid": "19110794", "title": "", "text": "motions for summary judgment, based principally upon statute of limitations grounds. Thereafter, their counsel refused to produce either the documents requested or the defendants for deposition. The plaintiffs filed several motions to compel discovery and, subsequently, filed motions to continue the defendants’ motions for summary judgment to permit further discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. There was extensive briefing on the Rule 56(f) motions, but the court never explicitly set a briefing schedule on the defendants’ motions for summary judgment. In a decision and order promulgated on May 20, 1982, the trial judge denied the plaintiffs’ Rule 56(f) motion and, finding that no additional discovery was required, granted the defendants’ motions for summary judgment with prejudice as to the federal claims and without prejudice as to the pendent state claims. 539 F.Supp. 498 (E.D.Wis.1982). The plaintiffs appealed. II. THE DISTRICT COURT OPINION The district court applied the undisputedly applicable state statute of limitations to the plaintiffs’ state and federal securities claims. That provision states: “No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires ____” Wis.Stats. § 551.59(5). Because the plaintiffs filed suit in July 1981, the suit is well within three years of the September 1979 offer letter. Consequently, the court had to determine when the plaintiffs discovered the facts constituting the violation. From the date of that discovery, the plaintiffs had one year in which to bring their suit. The defendants submitted transcripts of the plaintiffs’ depositions in support of their motions for summary judgment. The court relied upon those depositions as well as the exhibits attached to the plaintiffs’ complaint, including the offer letter, to determine when the plaintiffs obtained sufficient information to begin the running of the statute of limitations. Both plaintiffs testified at their depositions that they received the offer letter within one week of its issuance and that they immediately knew that the price was too" }, { "docid": "3030790", "title": "", "text": "SPRECHER, Circuit Judge. In this appeal we reaffirm for Wisconsin forum cases, as we have previously held for Illinois and Indiana forum cases, that a civil action brought under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5, is governed by the forum state’s securities law statute of limitations and not by its common law fraud limitation period nor by its catch-all limitation period. I In Count I of the complaint, plaintiff sought damages from defendant accounting firm, alleging that defendant made false representations to him about the financial condition of the American City Bank & Trust Company of Milwaukee, Wisconsin, and its holding company, American Banks-hares Corporation. Defendant’s misrepresentations and non-disclosures assertedly caused plaintiff to buy Bankshares stock on May 17, 1974. The complaint alleged that the defendant acted “with intent to deceive, manipulate and defraud Plaintiff” and “knowingly or recklessly” concealed the distressed financial condition of the two companies from plaintiff. This was alleged to violate section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 thereunder. The district court granted the defendant’s motion for summary judgment, finding that the action was time-barred, 448 F.Supp. 84 (E.D.Wis.1978).- The complaint was filed on May 17, 1977; defendant claimed the action was barred by the period of limitations contained in section 551.59(5) of the Wisconsin Statutes, which requires actions to be commenced within one year after discovery of the misrepresentation or within three years after the act itself, whichever expires first. The district court held that the action was time-barred because “discovery of the fraud occurred when the plaintiff appeared in [a prior case ] by answering the complaint therein on January 22, 1976.” 448 F.Supp. at 86. The district court held that Count I of the complaint resembled a cause made actionable by section 551.59 of the Wisconsin Statutes, so that the one-to-three year statute of limitations set out in that section applied. We vacated the summary judgment and remanded the cause for further proceedings because the plaintiff had failed to argue before the" } ]

[ { "docid": "14193449", "title": "", "text": "§ 21 to allow insured nonmember banks to maintain subsidiary or affiliate relationships with securities firms, we uphold FDIC’s interpretation of § 21 and affirm the District Court. Given this clear intent, we need not reach Chevron’s “reasonableness” prong of analysis. B. Congress enacted the Glass-Steagall Act in response to the dramatic wave of bank failures of the early Depression, a wave that many perceived to have been the result of securities speculation by the banking industry. See Board of Governors, 450 U.S. at 61 & n. 28, 101 S.Ct. at 984 & n. 28; Camp, 401 U.S. at 629-30. The Act seeks to separate the banking and securities industries “as completely as possible.” Board of Governors, 450 U.S. at 70, 101 S.Ct. at 989. But while Congress may have intended to build an insurmountable barrier between member banks of the Federal Reserve System and the securities industry, see 12 U.S.C. §§ 24, 78, 377 (1982), Congress was far from certain in 1933 that it had authority to effect such a sweeping separation for insured state nonmember banks. In fact, several members of Congress nervously commented during the debate leading to enactment of the bill that Congress might lack power to regulate nonmember banks at all. See 75 Cong.Rec. 9905 (May 10, 1932) (remarks of Sen. Wal-cott); id. at 9911, 9913-14 (remarks of Sen. Bulkley). The hesitation of the 73rd Congress to regulate state nonmember banks is quite apparent in the actual language of the Act. National banks and banks that have chosen to become members of the Federal Reserve System are subject to stringent regulation that bars them from the securities field. Section 16 severely limits the ability of national banks to deal in securities and bars them from underwriting securities. 12 U.S.C. § 24 (1982); see also Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052 (D.C.Cir.1986). Section 20 bars firms “principally” engaged in securities transactions from affiliating with member banks. 12 U.S.C. § 377 (1982). Section 32 bars member banks from sharing officers or board members with securities firms. 12 U.S.C. § 78 (1982). Only §" } ]

[ { "docid": "21608512", "title": "", "text": "or underwriting business within the subject firm but rather in the market as a whole. The Second Circuit affirmed most of the Board’s decision and order. See SIA v. Board of Governors, 839 F.2d 47 (2d Cir.), cert. denied, 486 U.S. 1059, 108 S.Ct. 2830, 100 L.Ed.2d 931 (1988) (“Citicorp ”). The court declined to defer to the Board’s interpretation of securities , but after making its own independent analysis of the legislative history and statutory structure, it agreed with the Board that Congress never intended the limitation on securities underwriting and dealing by affiliates in section 20 to apply to those securities that a bank itself could underwrite. See id. at 62. On the other hand, the court did defer to the Board’s construction of the words “engaged principally” as a reasonable interpretation of the statute. See id. at 64. The market share restriction, however, did not survive review; the court agreed with the banks that that concept was foreign to section 20’s concerns. But — and we concede that this step surprises us — the court did not remand the case to the Board to determine whether the revenue test by itself was adequate to determine whether a given affiliate was “engaged principally” in securities activities. Instead, the court simply struck down the market share test leaving only the revenue test in place. See id. at 67-68. The Board, acquiescing in the court’s implicit determination that a revenue-only test was adequate to measure the substan-tiality of dealing and underwriting, shortly thereafter issued the order from which the SIA petitions in this case. Five bank holding companies, in October 1988, sought Board approval for their affiliates to underwrite and deal in corporate debt and equity securities generally — all bank-ineligible securities — subject only to a proportional revenue limitation. The Board, reiterating its section 20 definition of securities which had been affirmed in Citicorp and concluding that a five to ten percent revenue limitation would preclude the affiliates from being “engaged principally” in dealing or underwriting, held that the proposed activity did not violate the Glass-Steagall Act. See J.P." }, { "docid": "10003663", "title": "", "text": "entry of commercial banks into the investment banking field either directly or indirectly. Yet even after acknowledging these perils, Congress allowed banks to underwrite and deal in bank-eligible securities under § 16, making it plain therefore that it believed the risks were not so great when banks dealt in these securities. As Senator Bulkley stressed, whether or not a bank chooses to engage in these activities itself or through an affiliate is relatively unimportant compared to the question of whether a bank should engage in them at all. Since banks are allowed under § 16 to underwrite and deal in government obligations without limitation, it would be incongruous for § 20 to prohibit banks from affiliating with entities that are merely “engaged principally” in those same activities. Further, the Supreme Court observed that “[i]n both the Glass-Steagall Act itself and in the Bank Holding Company Act, Congress indicated that a bank affiliate may engage in activities that would be impermissible for the bank itself.” ICI, 450 U.S. at 64, 101 S.Ct. at 985. Similarly, in Schwab the Court commented that “the fact that § 16 of the Glass-Steagall Act allows banks to engage directly in [a service] suggests that the activity was not the sort that concerned Congress in its effort to secure the Nation’s banks from the risks of the securities market.” 468 U.S. at 221, 104 S.Ct. at 3011. The same principle necessarily applies here. As we recently stated, “the latitude the Act grants bank holding companies partially to engage in activities such as underwriting, which implicate the Act’s policies whether conducted by banks or by bank holding companies, suggests that bank holding companies can, under the Act, be allowed principally to engage in activities which pose the dangers the Act addressed only when conducted by banks.” Securities Indus. Ass’n v. Board of Governors of the Fed. Reserve Sys., 716 F.2d 92, 100 (2d Cir.1983), aff'd, Schwab, 468 U.S. 207, 104 S.Ct. 3003, 82 L.Ed.2d 158 (1984). Because underwriting and dealing in government securities pose no hazards to banks themselves, a fortiori bank affiliates should be able principally" }, { "docid": "14193453", "title": "", "text": "Governors, 807 F.2d 1052, 1056 (D.C.Cir.1986) (discussing interplay of §§ 16 and 21). Congress has not done the same for § 20, and we see no basis whatever for inferring such intent. On the contrary, § 20 speaks in the language of prohibition, not authorization. Member banks “shall not be affiliated in any manner * * * with any corporation, association, business trust, or other similar organization engaged principally” in securities activities. 12 U.S.C. § 377 (1982). Congress presumably did not indicate that § 20 should be an “exception” to § 21 because it did not intend that § 21 should extend to the activities of affiliates and subsidiaries in the first place. The two sections regulate separate activities. Second, if we were to accept petitioners’ argument that § 20 exempts member banks from the full prohibitory force of a § 21 that applies to both banks and their affiliates, we would be left with an anomalous result. Under petitioners’ interpretation, member banks would be subject to less stringent § 21 regulation than would be insured nonmember banks. This outcome is dramatically counter to what we would expect on examination of the statute and its history. It seems clear that Congress felt its efforts to regulate nonmember banks rested on shaky, if not ramshackle, authority. Members of Congress explicitly discussed this problem as it pertained to regulation of nonmember bank affiliates, and specifically indicated that regulation of such affiliates was probably beyond the power of Congress. That Congress would have imposed more demanding regulation on nonmember banks than on member banks, given this uncertainty, seems utterly improbable. Absent clear evidence, we will not infer that Congress had such contrary, even irrational, intentions for the statute. Despite petitioners’ considerable efforts, then, the language and structure of the Glass-Steagall Act do not support the view that § 21 bars insured nonmember banks from maintaining affiliate or subsidiary relationships with securities firms. Section 21 on its face fails to prohibit such relationships, and any judicial inference of such a prohibition would be inconsistent with the overall structure of the Act. This reasoning standing" }, { "docid": "14193455", "title": "", "text": "on its own demonstrates not only that FDIC’s interpretation of § 21 is “permissible” but, in fact, that it is the only valid approach. Moreover, the Supreme Court’s guidance on the proper scope of § 21 supports the agency’s interpretation. In Board of Governors v. Investment Company Institute, 450 U.S. 46, 101 S.Ct. 973, 67 L.Ed.2d 36 (1981), the Supreme Court addressed the argument that § 21 applies to bank holding companies as well as to banks, and that as a consequence it bars bank holding compa ny subsidiaries from engaging in securities work. The Court found that “the language of § 21 cannot be read to include within its prohibition separate organizations related by ownership with a bank, which does receive deposits.” 450 U.S. at 58 n. 24, 101 S.Ct. at 982 n. 24. As if this statement were not clear enough, the Court went on to emphasize that because § 20 specifically addressed the proper relationship between member banks and securities affiliates, “the structure of the Act reveals a congressional intent to treat banks separately from their affiliates. The reading of the Act urged by respondent [arguing for ‘single entity’ treatment of banks and their affiliates under § 21] would render § 20 meaningless.” Id. And to lay the question to rest once and for all, the Court stated that under Glass-Steagall “bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves.” Id. at 60, 101 S.Ct. at 983. In light of our reasoning above, this language clearly guides the proper holding on the issue presented in this case. The agency’s interpretation of § 21 is entirely consistent with Congress’ intent, and must stand. C. Petitioners put forward no direct response to the Supreme Court’s analysis in Board of Governors. Instead, they argue that the FDIC’s rule is at odds with “the legislative purpose underlying Section 21.” Brief for Appellants/Petitioners at 21. This is not a legislative history argument aimed at proving that the express terms of § 21 actually do bar nonmember bank activities of the sort the petitioners challenge. Rather," }, { "docid": "10003643", "title": "", "text": "by examining the legislative history of § 20, analyzing the Congressional compromise that resulted in the enactment of § 20, and then by looking at prior judicial construction of the Act. A. Legislative History 1. Envisioning § 20 — Congress’ Purpose The Act’s legislative history reflects the notion that the underlying cause of the stock market crash in 1929 and subsequent bank insolvencies came about from the excessive use of bank credit to speculate in the stock market. See S.Rep. No. 77, 73d Cong., 1st Sess. 3-9 (1933) [hereinafter 1933 Senate Report ]; see also 75 Cong. Rec. 9883-84 (1932) (remarks of Sen. Glass) (criticizing transformation of the Federal Reserve System from a commercial banking system into one used for “stock-market speculative operations”). Bank affiliates were identified as a major factor in the overextension of credit for security loans. See 1933 Senate Report, supra, at 9-10. Congress’ concern was not limited solely to how securities affiliates contributed to the excesses in bank credit; its apprehension was far more fundamental and structural. Senator Bulkley, for example, repeatedly stressed that the debate over affiliates should not obscure “[t]he important and underlying question [of] whether banking institutions receiving commercial and savings deposits ought to be permitted at all to engage in the investment-security business.” 75 Cong.Rec. 9910 (1932). He argued that “[t]he existence of security affiliates is a mere incident to this question,” id., and reiterated that “the real question is not whether ... banks shall be permitted to have investment-security affiliates but rather whether they should be permitted to engage in the investment-security business in any manner at all, through affiliates or otherwise,” id. at 9911. Two large problems attendant upon the involvement of a commercial bank in investment banking — either on its own or through use of an affiliate — were identified by Congress. The first was “the danger of banks using bank assets in imprudent securities investments.” ICI, 450 U.S. at 66, 101 S.Ct. at 986-87; see also Camp, 401 U.S. at 630, 91 S.Ct. at 1098. The second “focused on the more subtle hazards that arise when a" }, { "docid": "10003658", "title": "", "text": "Congress’ purpose to place both affiliates on the same footing. A subsequent amendment to the Glass-Steagall Act also argues against too strict a construction of § 20. As mentioned earlier, Congress amended § 21 in 1985 to “make it clear that [§ 21] does not prohibit any financial institution or private banker from engaging in the securities business” to the extent permitted in § 16. H.R.Rep. No. 742, 74th Cong., 1st Sess. 16 (1935); see also S.Rep. No. 1007, 74th Cong., 1st Sess. 15 (1935); S.Rep. No. 1260, 73d Cong., 2d Sess. 2 (1934). SIA claims that because § 20 was also amended at the same time, see H.R.Rep. No. 742, 74th Cong., 1st Sess. 16 (1935) (amendment to § 20 regarding formalities of affiliate liquidation), the failure to add to § 20 a similar proviso indicates a deliberate legislative determination that § 16 activities are within the scope of § 20. We cannot agree. First, this argument belies the clarifying nature of the amendment to § 21. See Bankers Trust II, 807 F.2d at 1057-58. Second, we decline to hold that in failing to amend § 20 in the same manner Congress planned to clarify the meaning of the term “securities” by its silence. There is evidence that the Banking Act of 1933 itself was not the driving force that caused banks to divest themselves of their affiliates. Instead, economic conditions and Congress’ investigation into stock market practices were instrumental in bringing banks to divorce themselves voluntarily from their affiliates. See B. Klebaner, supra, at 140; Banking Divorce, supra, at 522-24. Given this voluntary divestiture, § 20 became much less of a controversy in practice than it had been in legislative debate. Viewed in that perspective, it is not so unusual that Congress failed to amend § 20 in order to “clarify” the intent of that section as it had with § 21. Finally, amicus Investment Company Institute (ICI) argues that repealed § 19(e)’s definition of securities — “securities of any sort” — confirms that “securities” in § 20 must mean both bank-eligible and bank-ineligible securities. To the contrary," }, { "docid": "10003654", "title": "", "text": "the bill finally agreed upon and enacted into law made his amendment unnecessary. Recognizing the power of Senator Long’s position, SIA argues that statements and actions taken during debate are not entitled to much weight. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203 n. 24, 96 S.Ct. 1375, 1386 n. 24, 47 L.Ed.2d 668 (1976). A look at subsequent events in this case illustrates the soundness of that rule. In 1935, just two years after his strong rhetoric in the Banking Act debate, Senator Glass himself supported a proposed amendment to that law granting to commercial banks the right to underwrite securities. 79 Cong. Rec. 11,827 (1935). So much for not having “the portfolios of commercial banks filled with useless securities.” Thus, it seems eminently reasonable to conclude from Senator Glass’ response to Senator Long, as well as other evidence in the legislative history, that Congress’ concern was primarily with bank affiliate activities in bank-ineligible securities. Bank affiliates often “devote[d] themselves ... to perilous underwriting operations, stock speculation, and maintaining a market for the banks’ own stock often largely with the resources of the parent bank.” 1933 Senate Report, supra, at 10. According to Senator Glass, “[w]hat the committee had foremost in its thought was to exclude from commercial banking all investment securities except those of an undoubted character that would be surely liquidated; and for that reason we made an exception [in § 16] of United States securities and of the general liabilities of States and subdivisions of States.” 76 Cong.Rec. 2092 (1933). Given that Glass-Steagall was a means to sever commercial banking only from more speculative, “perilous” investment activities, in which bank-eligible activities were not included, an interpretation of “securities” in § 20 that excludes bank-eligible securities from its reach is entirely consistent with Congress’ aim. The history of security affiliates in the United States also supports this view. Many banks formed security affiliates in order to handle the sale of government bonds used to finance World War I. B. Klebaner, Commercial Banking in the United States: A History 109-10 (1974); Banking Divorce, supra, at" }, { "docid": "10003652", "title": "", "text": "that when stringency comes upon the country these banks may not respond to the requirements of commerce. That is what is the matter with the country to-day, and it is because this bill would avert a repetition of that disaster that intense and bitter opposition has been organized against it. 76 Cong.Rec. 2000 (1933). Senator Glass’ aspiration to divorce completely commercial banks from their security affiliates was never attained: § 20 only prohibits affiliation with firms that are “engaged principally” in forbidden investment activity. SIA urges from the above colloquy that Senator Glass objected to affiliates’ handling even securities that banks themselves could underwrite under the proposed legislation and that the Senator’s view carried the day in § 20 as enacted. On the contrary, we believe Senator Glass’ response to Senator Long indicates that he was primarily concerned with “back-door” arrangements between banks and their security affiliates that permitted affiliates to engage in the securities business denied by law to the bank itself. Senator Glass’ reservation did not encompass affiliate activity in a business that § 16 grants to a bank “the privilege of doing.” Further, Senator Long’s initial query indicates that the issue of whether affiliates ought to be able to engage in bank-eligible activities to the same extent as banks themselves was not dormant during the debates. Thus, Senator Long commented that those who had opposed some provisions in the bill “have seen some virtue in it. I particularly refer to the divorcing of the affiliates, except in so far as they handle municipal and Government bonds and securities.” 76 Cong.Rec. 2274 (1933). To make certain affiliates had the same right to deal in government obligations, Senator Long had printed and circulated an amendment to the Glass-Steagall bill to that effect. Proposed Amend, to S. 4412, 72d Cong., 2d Sess. (Jan. 10, 1933). Despite Senator Long’s repeated insistence that § 20 would not preclude bank-eligible activities by an affiliate, this amendment was never formally raised in debate. The Banking Act of 1933 became law five months later, on June 16, 1933, and it can be plausibly urged that" }, { "docid": "10003648", "title": "", "text": "of the opinion that a “complete separation” was both warranted and capable of being accomplished. E.g., Operation of the National and Federal Reserve Banking Systems, Hearings on S.4115 Before the Senate Comm, on Banking and Currency, 72d Cong., 1st Sess. 42, 267 (1932) (remarks of Sen. Glass) [hereinafter 1932 Hearings ]. Senator Glass’ views are significant, of course, because of his role in drafting and shaping the Banking Act of 1933, a portion of which bears his name. Cf. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27, 102 S.Ct. 1912, 1920-21, 72 L.Ed.2d 299 (1982) (remarks of sponsor of language ultimately enacted “are an authoritative guide to the statute’s construction”). Yet, despite the Senator’s goal of complete separation, the Senate took a less drastic step. Acknowledging that “[i]t has been suggested ... that the affiliate system be simply ‘abolished,’ ” the Senate rejected this as impossible and stated that its goals toward regulating affiliates were to (1) separate “as far as possible ” member banks from affiliates of all kinds; (2) limit advances or loans from parent to affiliate; and (3) install satisfactory examination requirements for affiliates. 1933 Senate Report, supra, at 10 (emphasis added). 2. Construing § 20 — Congress’ Compromise Section 20 was Congress’ solution to the problem of affiliates and establishes the boundary separating banks from their security affiliates. While § 21 prohibits firms “engaged” in investment banking activities from accepting deposits, § 20 prohibits commercial bank affiliation with firms “engaged principally” in underwriting and dealing in securities. The inference following from this different terminology is obvious: § 20 applies a “less stringent standard” than the absolute bar between commercial and investment banking laid down by §§ 16 and 21. ICI, 450 U.S. at 60 n. 26, 101 S.Ct. at 283-84 n. 26. Nor can the difference in terminology be attributed to oversight. Section 21 originally contained the term “engaged principally.” In offering the amendment that deleted “principally,” Senator Bulkley argued that “[i]t has become apparent that at least some of the great investment houses are engaged in so many forms of business that" }, { "docid": "10003653", "title": "", "text": "§ 16 grants to a bank “the privilege of doing.” Further, Senator Long’s initial query indicates that the issue of whether affiliates ought to be able to engage in bank-eligible activities to the same extent as banks themselves was not dormant during the debates. Thus, Senator Long commented that those who had opposed some provisions in the bill “have seen some virtue in it. I particularly refer to the divorcing of the affiliates, except in so far as they handle municipal and Government bonds and securities.” 76 Cong.Rec. 2274 (1933). To make certain affiliates had the same right to deal in government obligations, Senator Long had printed and circulated an amendment to the Glass-Steagall bill to that effect. Proposed Amend, to S. 4412, 72d Cong., 2d Sess. (Jan. 10, 1933). Despite Senator Long’s repeated insistence that § 20 would not preclude bank-eligible activities by an affiliate, this amendment was never formally raised in debate. The Banking Act of 1933 became law five months later, on June 16, 1933, and it can be plausibly urged that the bill finally agreed upon and enacted into law made his amendment unnecessary. Recognizing the power of Senator Long’s position, SIA argues that statements and actions taken during debate are not entitled to much weight. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203 n. 24, 96 S.Ct. 1375, 1386 n. 24, 47 L.Ed.2d 668 (1976). A look at subsequent events in this case illustrates the soundness of that rule. In 1935, just two years after his strong rhetoric in the Banking Act debate, Senator Glass himself supported a proposed amendment to that law granting to commercial banks the right to underwrite securities. 79 Cong. Rec. 11,827 (1935). So much for not having “the portfolios of commercial banks filled with useless securities.” Thus, it seems eminently reasonable to conclude from Senator Glass’ response to Senator Long, as well as other evidence in the legislative history, that Congress’ concern was primarily with bank affiliate activities in bank-ineligible securities. Bank affiliates often “devote[d] themselves ... to perilous underwriting operations, stock speculation, and maintaining a market" }, { "docid": "10003642", "title": "", "text": "only proscribes member bank affiliation with firms “engaged principally in the issue, flotation, underwriting, public sale, or distribution” of bank-ineligible securities, those which banks are prevented under § 16 from dealing in themselves. Throughout this opinion we have adopted, for clarity’s sake, the term “underwriting and dealing in” to refer to “the issue, flotation ...” language in § 20. II The Meaning of “Securities\" in § 20 When called upon to interpret the Glass-Steagall Act, judges “face a virtually insurmountable burden due to the vast dichotomy between the ostensible legislative intent and the actual motivations of Congress.” Glass-Steagall Dilemma, supra, at 1-2. Divining the aim of Congress in enacting § 20 is particularly formidable because the issue of the proper relationship between commercial banks and their affiliates caused considerable disagreement among legislators and experts who participated in the development of what became the Banking Act of 1933. See generally Perkins, The Divorce of Commercial and Investment Banking: A History, 88 Banking L.J. 483, 505-12 (1971) [hereinafter Banking Divorce ]. Consequently, we approach the subject first by examining the legislative history of § 20, analyzing the Congressional compromise that resulted in the enactment of § 20, and then by looking at prior judicial construction of the Act. A. Legislative History 1. Envisioning § 20 — Congress’ Purpose The Act’s legislative history reflects the notion that the underlying cause of the stock market crash in 1929 and subsequent bank insolvencies came about from the excessive use of bank credit to speculate in the stock market. See S.Rep. No. 77, 73d Cong., 1st Sess. 3-9 (1933) [hereinafter 1933 Senate Report ]; see also 75 Cong. Rec. 9883-84 (1932) (remarks of Sen. Glass) (criticizing transformation of the Federal Reserve System from a commercial banking system into one used for “stock-market speculative operations”). Bank affiliates were identified as a major factor in the overextension of credit for security loans. See 1933 Senate Report, supra, at 9-10. Congress’ concern was not limited solely to how securities affiliates contributed to the excesses in bank credit; its apprehension was far more fundamental and structural. Senator Bulkley, for example," }, { "docid": "10003621", "title": "", "text": "bank holding company to acquire the “shares of any company the activities of which the Board ... has determined ... to be so closely related to banking ... as to be a proper incident thereto.” 12 U.S.C. § 1843(c)(8) (1982). The determination that the approved securities activities are closely related to banking is not contested on this appeal. Rather, since the Board’s discretion under § 4(c)(8) is limited by the Glass-Steagall Act, cf. Board of Governors of Fed. Reserve Sys. v. Investment Co. Inst., 450 U.S. 46, 76-77, 101 S.Ct. 973, 992, 67 L.Ed.2d 36 (1981) (1C1), the principal issue before the Board was whether the approval of the activities would contravene that Act. Section 20 of the Glass-Steagall Act forbids a member bank of the Federal Reserve System from affiliating with an organization “engaged principally” in, inter alia, underwriting or dealing in securities. 12 U.S.C. § 377 (1982). Bank holding companies have been allowed since 1978 — without a court challenge by SIA — to acquire or form subsidiaries that underwrite and deal in securities representing obligations of the United States and of states and their political subdivisions. See, e.g., United Bancorp, 64 Fed.Reserve Bull. 222 (1978); see also 12 C.F.R. § 225.25(b)(16) (1987) (regulation permitting such activity). Section 16 of the Glass-Steagall Act expressly permits banks themselves to underwrite and deal in these governmental securities, known as “bank-eligible securities.” 12 U.S.C. § 24 (Seventh) (1982 & Supp. IV 1986). Given the authorization in § 16 for banks to engage in bank-eligible securities activities, the Board concluded that Congress did not aim in § 20 to proscribe bank affiliates from engaging in the same activities. 73 Fed.Reserve Bull, at 478-81. It reasoned that it would be anomalous not to permit the bank’s subsidiary to engage in the activities lawfully permitted the bank. That illogical result necessarily follows if bank-eligible securities are defined as “securities” under § 20 because that section prohibits a member bank from being affiliated with an organization “engaged principally” in securities dealing. Hence, according to the Board, “securities” cannot logically mean bank-eligible securities. “Securities” in §" }, { "docid": "22177073", "title": "", "text": "banks under [§ 16]”). Moreover, § 5(c) of the Glass-Steagall Act likewise refers only to “investment securities and stock”; yet that provision, as petitioners concede, makes §16 of the Glass-Steagall Act applicable in full to “state member banks” like the Bankers Trust Company, see Brief for Petitioner A. G. Becker Inc. 2, n. 2; Brief for Petitioner Securities Industry Association 3, n. 3. All of these congressional enactments presuppose that Congress understood “securities” and “investment securities” to refer to the same class of debt instruments, a class that excludes commercial paper. This conclusion confirms the Board’s view that §§ 16 and 21, as amended in 1935, were intended to apply only to investment instruments akin to stocks, bonds, and debentures. It also comports with what the legislative history reveals to have been of concern to the Congress that enacted Glass-Steagall. During the extensive legislative hearings and debates leading up to the enactment of the Glass-Steagall Act, Congress focused its attention on commercial banks’ participation in the markets for long-term and speculative securities, and commercial paper was distinguished from the investment securities that Congress was worried about. See S. Rep. No. 77, supra n. 8, at 4, 8, 9; 75 Cong. Rec. 9904, 9909, 9910, 9912 (1932). Moreover, although commercial banks’ purchasing activities were a major subject of congressional concern, and although commercial banks were the dominant buyers of commercial paper at the time, no one in Congress, as far as anything brought to this Court’s attention shows, ever adverted to banks’ commercial paper activities as contributing to the difficulties at which the Act was aimed. See App. to Pet. for Cert. 75a-76a. Thus, the legislative history shows Congress to have been concerned with commercial banks’ involvement with investment instruments, as the Board contends, and not with their involvement with commercial paper. In sum, the language of §§ 16 and 21 strongly supports the Board’s interpretation. Indeed, petitioners have suggested no other construction that can be accommodated by the language of the statute. Since the legislative history makes it impossible to argue that Congress intended something contrary to the statutory language," }, { "docid": "23059010", "title": "", "text": "is “closely related” to banking is reasonable and supported by a normal reading of the statutory language of § 4(c)(8). The factual findings to which this standard was applied are substantially supported by the record. The Court of Appeals, therefore, properly deferred to the Board’s determination in this case. B The Board expressly considered and rejected SIA’s argument that BAC’s acquisition of Schwab violates the Glass-Steagall Act. That Act comprises four sections of the Banking Act of 1933. Only one of those four sections is applicable here. That provision, §20, as set forth in 12 U. S. C. § 377, provides in relevant part: “[N]o member bank shall be affiliated in any manner described in subsection (b) of section 221a of this title with any corporation, association, business trust, or other similar organization engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes, or other securities ...” (emphasis added). A bank holding company’s subsidiaries are bank affiliates within the meaning of § 20. 12 U. S. C. § 221a(b). Section 20, therefore, prohibits BAC’s proposed acquisition if Schwab is “engaged principally” in any of the activities listed therein. SI A concedes that Schwab is not engaged in the “issue, flotation, underwriting, ... or distribution” of securities. It argues, however, that the term “public sale” of securities as used in § 20 applies to Schwab’s brokerage business. The Board rejected this argument, holding that “Schwab is not engaged principally in any of the activities prohibited to member bank affiliates by the Glass-Steagall Act.” 69 Fed. Res. Bull., at 114. The Board has broad power to regulate and supervise bank holding companies and banks that are members of the Federal Reserve System. In this respect, the Board has primary responsibility for implementing the Glass-Steagall Act, and we accord substantial deference to the Board’s interpretation of that Act whenever its interpretation provides a reasonable construction of the statutory language and is consistent with legislative intent. ICI, supra, at 68; Investment Company Institute v. Camp, 401 U. S. 617, 626-627" }, { "docid": "10003673", "title": "", "text": "Plotkin, What Meaning Does Glass-Steagall Have for Today’s Financial World?, 95 Banking L.J. 404, 414-16 (1977). It cannot be supposed that the Congress that enacted Glass-Steagall would have intended that § 20 not prohibit such affiliations. This is not to say that “principally” cannot in some contexts mean “chief” or “first,” but rather that in § 20 the term must be given a definition that is both sensible and in harmony with legislative purpose. Moreover, the logic of the holding companies’ position is that “principally” in § 20 is a directly quantitative, not a qualitative, term. “Substantially,” on the other hand, reflects the qualitative aspects of “principally.” When Congress wanted to use a quantitative test in the Banking Act of 1933, it knew how to do it. See § 2(b), (c), 48 Stat. at 162-63 (definition of affiliate); § 13, 48 Stat. at 183 (collateral requirements for loans to affiliates); § 16 (Seventh), 48 Stat. at 185 (limitations on banks’ purchase of securities for own account), § 19(b), 48 Stat. at 187 (level of assets for holding company affiliates to be maintained free of any liens); § 19(c), 48 Stat. at 187 (shareholders’ liability determination). Because in § 20 Congress departed from a quantitative approach, the argument that a qualitative test should be controlling is all the more compelling. SIA and ICI advance several arguments against the Board's interpretation of \"principally.” They assert that “engaged principally” in § 20 at least covers any firm “formed for the purpose of” underwriting securities, relying on the Supreme Court’s statement in ICI regarding repealed § 19(e) that “[a]ll companies formed for the purpose of issuing or underwriting securities would surely meet the ‘engaged principally’ test.” 450 U.S. at 70 n. 43, 101 S.Ct. at 988-89 n. 43. Concededly, the subsidiaries here were formed for the purpose of engaging in securities activities. Yet, this argument is unpersuasive too. The Court’s statement in ICI is dicta and seems to indicate nothing more remarkable than that a company formed for the purpose of underwriting securities most likely would be expected to be engaged principally in that" }, { "docid": "10003649", "title": "", "text": "advances or loans from parent to affiliate; and (3) install satisfactory examination requirements for affiliates. 1933 Senate Report, supra, at 10 (emphasis added). 2. Construing § 20 — Congress’ Compromise Section 20 was Congress’ solution to the problem of affiliates and establishes the boundary separating banks from their security affiliates. While § 21 prohibits firms “engaged” in investment banking activities from accepting deposits, § 20 prohibits commercial bank affiliation with firms “engaged principally” in underwriting and dealing in securities. The inference following from this different terminology is obvious: § 20 applies a “less stringent standard” than the absolute bar between commercial and investment banking laid down by §§ 16 and 21. ICI, 450 U.S. at 60 n. 26, 101 S.Ct. at 283-84 n. 26. Nor can the difference in terminology be attributed to oversight. Section 21 originally contained the term “engaged principally.” In offering the amendment that deleted “principally,” Senator Bulkley argued that “[i]t has become apparent that at least some of the great investment houses are engaged in so many forms of business that there is some doubt as to whether the investment business is the principal one.” 77 Cong.Rec. 4180 (1933). Given that one of the leading advocates of Glass-Steagall recognized that “engaged” connoted a stricter standard than “engaged principally,” it is inconceivable that the latter term could remain in § 20 by sheer happenstance. Thus, while the original impetus behind the Glass-Steagall bill on the floor of Congress may have been to sever completely the commercial and investment banking industries, it fell short of that goal — a victim of legislative compromise. Legislative history also supports the view that § 20’s use of the word “securi ties” did not imply a complete separation between commercial and investment banking. A colloquy between Senators Glass and Long is illuminating: MR. Long. I have been told that the Senator has said that he did not think this bill would prohibit the handling of Government and State bonds by the Federal reserve banks, that the Senator’s provision against affiliates handling bonds was not intended to affect the handling of Government and" }, { "docid": "10003674", "title": "", "text": "for holding company affiliates to be maintained free of any liens); § 19(c), 48 Stat. at 187 (shareholders’ liability determination). Because in § 20 Congress departed from a quantitative approach, the argument that a qualitative test should be controlling is all the more compelling. SIA and ICI advance several arguments against the Board's interpretation of \"principally.” They assert that “engaged principally” in § 20 at least covers any firm “formed for the purpose of” underwriting securities, relying on the Supreme Court’s statement in ICI regarding repealed § 19(e) that “[a]ll companies formed for the purpose of issuing or underwriting securities would surely meet the ‘engaged principally’ test.” 450 U.S. at 70 n. 43, 101 S.Ct. at 988-89 n. 43. Concededly, the subsidiaries here were formed for the purpose of engaging in securities activities. Yet, this argument is unpersuasive too. The Court’s statement in ICI is dicta and seems to indicate nothing more remarkable than that a company formed for the purpose of underwriting securities most likely would be expected to be engaged principally in that activity. Further, since § 20 does not restrict bank-eligible securities activities, SIA and ICI arguably miss the point. Companies formed for the purpose of dealing in bank-eligible securities would not fall within the prohibitions of § 20. To support their argument, SIA and ICI also rely on former § 19(e) of the Glass-Steagall Act. Section 19(e) — repealed in 1966 — indirectly limited bank holding companies’ acquisition of subsidiaries “formed for the purpose of, or engaged principally in” prohibited securities activities. 48 Stat. at 188; see also supra note 4. Because § 20 and § 19(e) were intended to accomplish the same result, SIA and ICI argue that we should read the two sections as being coextensive. Even assuming that SIA and ICI are correct, § 19(e) would not have prohibited the activities here approved. It originally was intended to apply to “any affiliate formed for the purpose of, or engaged in” securities activities. See 1932 Hearings, supra, at 13 (text of proposed § 20(e)) (emphasis added). As originally conceived, any securities activity was prohibited" }, { "docid": "10003635", "title": "", "text": "Board under its statutory authority. The Board’s, orders on appeal here are not instances where the Board failed to adopt an expressly articulated position on the meaning of § 20. Cf. Investment Co. Inst. v. Camp, 401 U.S. 617, 627-28, 91 S.Ct. 1091, 1097-98, 28 L.Ed.2d 367 (1971) (Camp). Nonetheless, its failure to address — in what is an otherwise comprehensive and reasoned decision — the significance of its prior interpretation of § 32 counsels against granting it full deference. Our own review of the history of the Glass-Steagall Act leads us nonetheless to conclude that construing § 20 as not encompassing activities by bank affiliates in bank-eligible securities is essential if Congress’ purpose in enacting § 20 is to be effectuated. DISCUSSION The two principal issues presented to this court are the Board’s constructions of the terms “securities” and “engaged principally” under § 20 of the Glass-Steagall Act. The proper interpretation of § 20 is an issue of first impression and necessitates a comprehensive examination of both the relevant legislation and the events surrounding its enactment. I Glass-Steagall: A Statutory Overview The whole of the Banking Act of 1933, ch. 89, Pub.L. No. 73-66, 48 Stat. 162 (1933) (codified as amended in scattered sections of 12 U.S.C.), is sometimes referred to as the Glass-Steagall Act. See ICI, 450 U.S. at 53, 101 S.Ct. at 980. It is perhaps more accurate to consider §§ 16, 20, 21, and 32 of the Banking Act of 1933 in particular as the Glass-Steagall Act. See Schwab, 468 U.S. at 216 & n. 15, 104 S.Ct. at 3008 & n. 15. These sections, the “ ‘Maginot Line’ of the financial world,” see Macey, Special Interest Groups Legislation and the Judicial Function: The Dilemma of Glass-Steagall, 33 Emory L.J. 1, 5 (1984) [hereinafter Glass-Steagall Dilemma ] (quoting Bevis Longstreth, “Current Issues Facing the Securities Industry and the SEC,” May 4, 1982 speech to the SIA), were meant to separate commercial and investment banking. Section 16 of the Glass-Steagall Act applies to federally chartered banks and restricts their powers. In pertinent part, the statute as amended" }, { "docid": "10003662", "title": "", "text": "stated in Board of Governors of the Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986): Application of “broad purposes” of legislation at the expense of specific provisions ignores the complexity of the prob lems Congress is called upon to address and the dynamics of legislative action. Congress may be unanimous in its intent to stamp out some vague social or economic evil; however, because its Members may differ sharply on the means for effectuating that intent, the final language of the legislation may reflect hard-fought compromises. Invocation of the “plain purpose” of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent. 474 U.S. at 373-74, 106 S.Ct. at 688. In light of these principles, the Court’s subtle hazards analysis does not preclude the Board’s construction of § 20. As noted, Congress was not concerned with affiliation per se, but rather with the dangers attendant upon the entry of commercial banks into the investment banking field either directly or indirectly. Yet even after acknowledging these perils, Congress allowed banks to underwrite and deal in bank-eligible securities under § 16, making it plain therefore that it believed the risks were not so great when banks dealt in these securities. As Senator Bulkley stressed, whether or not a bank chooses to engage in these activities itself or through an affiliate is relatively unimportant compared to the question of whether a bank should engage in them at all. Since banks are allowed under § 16 to underwrite and deal in government obligations without limitation, it would be incongruous for § 20 to prohibit banks from affiliating with entities that are merely “engaged principally” in those same activities. Further, the Supreme Court observed that “[i]n both the Glass-Steagall Act itself and in the Bank Holding Company Act, Congress indicated that a bank affiliate may engage in activities that would be impermissible for the bank itself.” ICI, 450 U.S. at 64, 101 S.Ct. at 985. Similarly, in" }, { "docid": "14193454", "title": "", "text": "insured nonmember banks. This outcome is dramatically counter to what we would expect on examination of the statute and its history. It seems clear that Congress felt its efforts to regulate nonmember banks rested on shaky, if not ramshackle, authority. Members of Congress explicitly discussed this problem as it pertained to regulation of nonmember bank affiliates, and specifically indicated that regulation of such affiliates was probably beyond the power of Congress. That Congress would have imposed more demanding regulation on nonmember banks than on member banks, given this uncertainty, seems utterly improbable. Absent clear evidence, we will not infer that Congress had such contrary, even irrational, intentions for the statute. Despite petitioners’ considerable efforts, then, the language and structure of the Glass-Steagall Act do not support the view that § 21 bars insured nonmember banks from maintaining affiliate or subsidiary relationships with securities firms. Section 21 on its face fails to prohibit such relationships, and any judicial inference of such a prohibition would be inconsistent with the overall structure of the Act. This reasoning standing on its own demonstrates not only that FDIC’s interpretation of § 21 is “permissible” but, in fact, that it is the only valid approach. Moreover, the Supreme Court’s guidance on the proper scope of § 21 supports the agency’s interpretation. In Board of Governors v. Investment Company Institute, 450 U.S. 46, 101 S.Ct. 973, 67 L.Ed.2d 36 (1981), the Supreme Court addressed the argument that § 21 applies to bank holding companies as well as to banks, and that as a consequence it bars bank holding compa ny subsidiaries from engaging in securities work. The Court found that “the language of § 21 cannot be read to include within its prohibition separate organizations related by ownership with a bank, which does receive deposits.” 450 U.S. at 58 n. 24, 101 S.Ct. at 982 n. 24. As if this statement were not clear enough, the Court went on to emphasize that because § 20 specifically addressed the proper relationship between member banks and securities affiliates, “the structure of the Act reveals a congressional intent to treat" } ]

[ { "docid": "22702452", "title": "", "text": "disability as found in the testimony of claimant, his wife and neighbors; and, (4) claimant’s age, educational background, and work experience. The Appeals Council in its final decision, consisting of twenty or more pages, carefully reviewed and considered the medical history of the claimant. We briefly review it here. Dr, Gabriel, claimant’s personal physician, examined him in March of 1961 and diagnosed his condition as mild hypertension. He advised claimant against engaging in any “strenuous work.” The records of the Harlan Memorial Hospital, where claimant was examined at various times from June 1961 to April 1962, indicate an absence of cardiovascular, liver, spleen, or kidney malfunctioning. There was noted a slight visual impairment. Claimant’s lungs were found to be clear to percussion and his pulmonary ventilation was within the lower limits of normal. The general impression was mild hypertension and shortness of breath. Dr. Anderson, who examined the claimant in July 1961, found that while he had shortness of breath and occasional swelling of the legs he was “otherwise o.k.” Claimant was last seen at' Harlan Memorial in April of 1962. He was examined by Dr. Henry Evans who found his chest clear, his heart regular and no evidence of edema. Medication was prescribed. Claimant had again visited Dr. Gabriel in February 1962 and again he was advised not to perform any “strenuous work.” In January 1964 claimant underwent an examination at the University of Tennessee Hospital. This examination revealed minimal pulmonary emphysema with little functional impairment and a minimal degree of obstruction in ventilation. No kidney disease could be conclusively established and tests seemed to negative any renal malfunctioning. The heart studies done at the University of Tennessee revealed no enlargement. A rapid heartbeat — sinus tachycardia — was attributed to a mild upper respiratory infection. The electrocardiogram and Master’s Test were normal. Recommended treatment, which was control of hypertension and treatment of the upper respiratory infection, did not indicate any permanent disability. There was no indication that claimant was unable to perform any work or that he was “disabled.” There is also the evidence of the Secretary’s expert" } ]

[ { "docid": "13677120", "title": "", "text": "district court in Tookes had determined that substantial evidence did not support the Secretary’s finding that the claimant could return to his old job and that the agency should decide whether the claimant could perform available alternative work. This Court’s conclusion that it lacked jurisdiction to hear the appeal is controlling here. See also Barfield v. Weinberger, 485 F.2d 696, 698 (5th Cir.1973) (holding nonjurisdictional an appeal from a district court order remanding to Secretary to determine if hearing afforded claimant satisfied Supreme Court requirements). APPEAL DISMISSED. APPENDIX IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 79-3340 . Summary Calendar CHARLIE C. TOOKES, Plaintiff-Appellee, versus PATRICIA ROBERTS HARRIS, Secretary of Health and Human Resources, Defendant-Appellant. Appeal from the United States District Court for the Middle District of Georgia (MARCH 25, 1980) Before AINSWORTH, FAY and RANDALL, Circuit Judges. PER CURIAM: The Secretary of the Department of Health, Education and Welfare (HEW) appeals the district court’s order remanding to the administrative law judge (ALJ) Mr. Charlie Tookes claim for disability benefits. We dismiss the appeal. Charlie C. Tookes is a fifty-nine year old man with a fourth grade education. Mr. Tookes, without benefit of counsel, filed an application for disability benefits because of his heart trouble, high blood pressure, and diabetes. The Social Security Administration denied the application initially and on reconsideration. After a hearing de novo the ALJ determined that Tookes was not under a disability. The HEW Appeals Council affirmed that decision, which then became final. Disability as defined in section 223 of the Social Security Act means: inability to engage in 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. § 223 (1976). The ALJ concluded that Tookes retained the residual functional capacity to perform a wide range of activities consistent with his occupational background. The ALJ also found that Tookes failed to establish a medically determinable impairment or combination" }, { "docid": "6003232", "title": "", "text": "1965, the claimant testified that he has avoided all strenuous activity, including work, since his heart attack, and that his condition had caused him little pain or difficulty. Although his doctors advised him that he could perform light work, he admitted that he had not attempted to find such work. In his decision the hearing examiner conceded that the claimant was incapable of returning to his former work in the coal mines, but nevertheless he thought that the claimant was capable of light but gainful work. This latter opinion was based on the testimony of a vocational expert present at the hearing, who suggested over twenty jobs, none requiring arduous physical labor or much reading or writing skills, which he thought the claimant was capable of performing. Some of these occupations were identified as existing in the general area of the claimant’s residence. The claimant agreed that he was probably capable of such light work. This decision of the hearing examiner denying disability benefits became the final decision of the Secretary when the claimant failed to request review by the Appeals Council of the Social Security Administration within the required sixty days. 20 C.F.R. §§ 404.940 and 404.946 (1969). If this decision of the hearing examiner were the subject of review in this proceeding — -which it is not — this court would be required to affirm it under 42 U.S.C.A. § 405(g), since it is supported by substantial evidence. Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). The claimant filed a second application for disability benefits on June 20, 1966, which alleged disability as of June, 1964, due to heart trouble and a nervous condition. The only significant additional evidence submitted in support of the second application was a diagnosis of “anxiety neurosis” contained in a physician’s report dated June 21, 1966, which did not elaborate on this finding. The claimant’s nervous condition was not apparent during an interview with the claimant by a representative of the Social Security Administration, to whom the claimant admitted that his heart condition had improved somewhat and had not troubled him recently." }, { "docid": "23056870", "title": "", "text": "examiner denied claimant’s application and found that claimant did not have physical impairments of such severity so as to prevent him from engaging in any substantial gainful activity, or even returning to the type of work in which he had been engaged prior to his alleged disability. Claimant’s request for review was denied by the Appeals Council and the decision of the hearing examiner became the final decision of the Secretary. Admittedly, the medical report and the oral testimony of Dr. Dakil appearing in the record, standing alone, makes a strong case for the claimant. The report diagnosed appellee’s physical impairments as tuberculosis, emphysema, hypertension, diverticulitis, chronic nephritis and hypertrophical prostate. The report also classified appellee as totally disabled for any type of labor and recommended that he avoid exertion and dampness and that he get rest and maintain a proper diet. The doctor’s oral testimony generally supported what he had put into his report. The other medical evidence in the record, consisting of reports of seven medical examinations of appellant made during the years 1961, 1962 and 1963, contradicts in many important respects the report and oral testimony of Dr. Dakil. There are two reports from Dr. Julius LaCroix. His first report diagnosed appellant’s condition as “possible malignancy of G. I. tract, chronic sinusitis, chronic prostatitis” and stated that claimant was unable to engage in manual labor because of back pain and instability. LaCroix’s second report made in 1963 stated claimant’s back and extremities were within normal limits, blood pressure was 120/80, regular heart beat rate and rhythm, absence of heart murmurs, no enlargement of cardiac muscle, lungs were clear to ausculation and percussion, rectal examination revealed be nign prostate hypertrophy, and concluded that claimant had chronic sinusitis and chronic prostatitis with secondary urinary tract infection. Dr. Henry D. Wolfe examined appel-lee on April 26, 1961, and reported that his examination failed to reveal any remarkable or outstanding defects and diagnosed the condition as minimal spinal arthritis and gastroenteritis. The first report from the University of Oklahoma Medical Center, dated September 15, 1961, showed an electrocardiogram taken of appellee" }, { "docid": "12422219", "title": "", "text": "WINTER, Circuit Judge: The Secretary appeals from the district court’s holding that the unappealed administrative denial of claimant’s four previous applications for social security disability benefits was not res judicata of a substantially identical fifth application. We reverse and direct that the Secretary’s motion for summary judgment be granted. The doctrine of administrative res judicata is firmly established as the law of this circuit even though the prior administrative determination adverse to the claimant was not put to the scrutiny of judicial review. Leviner v. Richardson, 443 F.2d 1338 (1971), and authorities collected therein. The only exceptions to application of the principle are where there is manifest error in the record of the prior administrative proceeding (Grose v. Cohen, 406 F.2d 823 (4 Cir. 1969); Easley v. Finch, 431 F.2d 1351 (4 Cir. 1970)), or where, in support of a new application, new and material evidence is offered which is of sufficient weight that it may result in a different determination (Leviner v. Richardson, supra). In this case the claimant filed applications with the Secretary in 1956, 1959, 1961, 1965 and 1967. In each he claimed disability from silicosis and arthritis. In his second and subsequent applications he also claimed disabling heart disease. Claimant requested and was granted a hearing with respect to his second application. It was established that claimant’s insured status expired on June 30, 1958. While he was found to have had some silicosis and some arthritis prior to June 30, 1958, these were found not to have been so severe as to preclude him from performing substantial gainful activity prior to the expiration of his insured status. His disabling heart disease did not ensue until July 4, 1959, when he suffered a serious heart attack, but that was after his insured status had expired. Our examination of the administrative record of the prior applications show that while there was some evidence to support claimant’s applications, there was also substantial evidence to deny them. Therefore, it cannot be said that there was manifest error in the record of the prior administrative proceedings. No new and material evidence" }, { "docid": "2818771", "title": "", "text": "in the best position to furnish it — Dr. Bartley — substantiated Miss Hayes’ claim that she is disabled within the meaning of the Act. Dr. Glendy’s opinion is at odds with this evidence. We reach the conclusion that, in view of the opinion evidence as to the existence of a dis ability, combined with the overwhelming medical facts, the uncontradicted subjective evidence, and claimant’s vocational background, the opinion of a doctor who never examined or treated the claimant cannot serve as substantial evidence to support the Secretary’s finding.” In Thomas v. Celebrezze, 331 F.2d 541 (C.A.4), where the Secretary placed reliance upon one portion of the testimony of a physician to the disregard of overwhelming evidence to the contrary, the court held that the Secretary’s conclusions could not stand. In Sebby v. Flemming, 183 F.Supp. 450, 453, 454 (W.D.Ark.), two physicians who had treated the applicant over a period of years stated that he was totally incapacitated, while a physician to whom the applicant had been referred by the Social Security Administration stated that he would place the applicant in a class “with slight limitation of activity.” However, Chief Judge John E. Miller, in reversing the decision of the Secretary and remanding the case for the granting of disability benefits, held that there was no substantial evidence to support the conclusions of the Secretary. In arriving at his conclusion, Judge Miller said: “The Social Security Administration referred the plaintiff to Dr. Ala-stair D. Hall of Little Rock, Arkansas, for a consultive examination. Dr. Hall concludes his report, dated July 28, 1958, by stating: “ ‘Conclusions: This 58 year old man gives a history of attacks of weakness, questionable blackouts, and rapid heart action which seem to be attacks of paroxysmal Atrial Tachycardia. In between attacks he is fine but has to be careful about his activity. He is nervous and very anxious about these attacks. He would not take an ETT. The Vital Capacity was 70% of normal. The lungs were clear on X-Ray but the heart was slightly enlarged and there were some calcium plaques along the aortic" }, { "docid": "22600522", "title": "", "text": "STEPHEN H. ANDERSON, Circuit Judge. Harley Talbot applied twice for Social Security disability insurance benefits, first on June 9, 1982, and again a year later on June 13, 1983. Both applications were denied by the Social Security Administration (“SSA”), and Talbot (“claimant”) appealed the second denial to an administrative law judge (“AU”). His appeal was denied by the AU, and the Appeals Council of the Secretary of Health and Human Services affirmed the denial. The claimant then sought review in federal district court, where the administrative actions were upheld. The claimant now appeals from the district court’s adverse ruling. We reverse, on the basis that substantial evidence does not support the AU’s decision that the claimant could engage in a full range of light work. BACKGROUND The claimant is a fifty-six-year-old man who has not been gainfully employed since October 10, 1981. He has a recent history of heart disease, lung disease, and liver disease. He attended public schools through the eighth grade and received the equivalent of a twelfth grade education via correspondence courses. For over thirty years, he worked on a variety of jobs in highway, bridge, dam, and pipeline surveying and construction, work requiring medium to heavy exertion. Among other jobs, he held the position of “public works inspector,” “construction superviser,” and “field engineer.” Over the past several years, Mr. Talbot has experienced an increasing number of health problems, including blackouts and dizzy spells. He complains of chest pain, back pain, and shortness of breath upon exertion. His treating physicians have found objective evidence of atrial fibrillation (irregular contractions of the atrium of the heart) and atherosclerotic heart disease (heart disease involving degeneration of the arteries). During the claimant’s initial application process for Social Security insurance benefits in mid 1982, treating physician Dr. Beryl R. McCann reported that the claimant was suffering from atrial fibrillation and congestive heart failure subsequent to pneumonia, for which he was hospitalized in late 1980. Dr. Alice D. Cox, who examined the claimant in mid-1982 at the request of the SSA, did not find congestive heart failure but did confirm atrial fibrillation" }, { "docid": "7211246", "title": "", "text": "through the date of this decision. 2. The claimant has not engaged in substantial gainful activity since May 23, 1985. 3. The medical evidence establishes that the claimant has severe ischemic heart disease, status post myocardial infarction, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. 4. The claimant’s subjective complaints are credible to the extent that the medical records support a conclusion that greater than light work activity would be precluded. 5. The claimant has the residual functional capacity to perform work-related functions except for work involving greater than light physical exertion, climbing ladders, working at unprotected heights or work or exposure to temperature extremes (20 CFR 404.-1545 and 416.945). 6. The claimant’s past relevant work as a security guard did not require the above limitation(s) (20 CFR 404.1565 and 416.965). 7. The claimant’s impairment does not prevent the claimant form performing his past relevant work. 8. The claimant was not under a “disability” as defined in the Social Security Act, at any time through the date of the decision (20 CFR 404.1520(e) and 416.920(e)). Administrative Transcript, Hearing Decision (Mar. 13, 1986) at 6-7. The appeals council denied Cannon’s request for review; therefore, the determination of the AU became the final decision of the Secretary. Cannon appealed to the district court, which affirmed the Secretary’s decision by order and memorandum opinion. Cannon then appealed to this court. In addition, on September 9, 1987, Cannon filed a motion to remand this case to the Secretary for consideration of newly submitted evidence. On October 9, 1987, we stayed the briefing schedule pending a ruling on the motion. On February 3, 1988, we ruled that the motion to remand would be carried with the case. DISCUSSION A claimant is entitled to disability benefits when he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment_” 42 U.S.C. § 423(d)(1)(A) (1982). Initially, the claimant must prove that he is unable to perform his previous work." }, { "docid": "19053346", "title": "", "text": "MEMORANDUM OPINION AND ORDER NEESE, District Judge. This is an action for judicial review of the decision of the defendant administrator, denying the plaintiff’s application for disability benefits under the Social Security Act, 42 U.S.C. §§ 416(i), 423. The defendant has moved for summary judgment, Rule 56(b), Federal Rules of Civil Procedure. The issue is whether there is substantial evidence in the record to support the final decision of the Secretary that the plaintiff was not entitled to a period of disability or disability benefits under the Act. The plaintiff will continue to meet the special earnings requirements for disability purposes at least until December 31, 1971. The plaintiff filed application for a period of disability and for disability benefits on August 23, 1967, alleging that he became unable to work on April 7, 1967. This application was denied on December 19, 1967, and on its reconsideration on June 20, 1968. A hearing was held and on November 26, 1968, the hearing examiner found that the plaintiff was not entitled to a period of disability or disability insurance benefits. This decision became the final decision of the defendant administrator on February 27, 1969, when the Appeals Council denied plaintiff’s request for review. The hearing examiner found, inter alia, “ * * * That claimant suffers from arteriosclerotic heart disease and an anxiety reaction which are responsible for symptoms which place him in [functional and [tjherapeutic [classification II-B under the system of classification of the American Heart Association. * * * [and] * * * That claimant’s impairments are not of such severity as to preclude his engaging-in substantial gainful employment; and specifically from performing the jobs described by the vocational expert * * * He arrived at such findings after an extensive review of the medical evidence before him. As stated by said examiner: The claimant in this case has been examined and evaluated by a host of highly competent physicians. * * * Claimant’s significant impairments would appear to be a possible coronary artery disease with anginal symptoms and an emotional impairment. * * * There is no question" }, { "docid": "11572173", "title": "", "text": "PER CURIAM. Claimant Basilio Perez Lugo appeals from a judgment of the district court affirming a decision by the Secretary of Health and Human Services denying his application for Social Security disability benefits. Claimant contends that the Secretary’s decision is not supported by substantial evidence. We agree that is not, and vacate and remand for further proceedings. Claimant’s application for benefits alleged disability because of a heart condition and because of depressive neurosis and anxiety. Based on the record — claimant having waived a hearing — the ALJ found claimant disabled. Focussing on claimant’s heart condition as an exertional impairment, the ALJ concluded that even if claimant had the residual functional capacity to perform sedentary work, application of Rule 201.06 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (“the grid”) dictated a finding of disabled. The ALJ added that claimant’s mental condition, a nonexertional impairment, probably precluded him from performing even sedentary work. The AU awarded benefits for a period of disability commencing May 30, 1981. The Appeals Council reviewed the AU’s decision on its own motion and modified it, cutting off claimant’s period of disability as of October 31, 1982. The Appeals Council found that claimant was unable to perform his past relevant work as an assistant steel roller in a steel mill. Nonetheless, the Appeals Council determined that, as a result of triple coronary bypass surgery performed in November 1981, by August 1982 claimant had regained the residual functional capacity to perform medium work, and accordingly was not disabled by application of Rule 203.15 of the grid. The Appeals Council further found, implicitly, that claimant’s nonexertional impairment did not significantly affect his ability to perform the full range of jobs requiring medium or lesser work. We cannot find that there was substantial evidence in the record to support the Appeals Council’s determination that claimant had the capacity to perform medium work as of August 1982. For the most part, the medical evidence in the record concerning claimant’s heart condition established only the bare medical facts: that claimant suffered from arteriosclerotic heart disease with angina" }, { "docid": "10048726", "title": "", "text": "PER CURIAM. Claimant Leroy Dudley filed an application on March 16, 1983 for Social Security disability benefits, alleging a heart condition. On December 28, 1982, claimant had been denied benefits for the same condition on an earlier application which had alleged a November 14, 1980 onset date. In the instant application claimant sought an award of benefits covering the period from November 26, 1980 forward, as well as to reopen the previous denial of benefits for the November 14, 1980-December 28, 1982 period. The Administrative Law Judge considered the new application for benefits de novo and, after a hearing, found claimant not disabled at step 4 of the sequential evaluation process on the ground that claimant could perform his former work as a labeller. The ALT also found that there was no basis for reopening the prior denial of benefits. After the Appeals Council denied claimant’s request for review of the AU’s decision, claimant appealed to the district court, which affirmed the Secretary. Claimant appealed. We affirm. There is substantial evidence in the record to support the Secretary’s finding that claimant did not prove that his impairment constitutes one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). The presence of such an impairment would require the Secretary to find disability under 20 C.F.R. § 404.1520(d). The burden to demonstrate the existence of such an impairment rests with the claimant. See Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir.1982); Pelletier v. Secretary of Health, Education and Welfare, 525 F.2d 158, 160 (1st Cir.1975). Claimant first argues that his impairment satisfies § 4.02 of the listings, which requires “congestive heart failure (manifested by evidence of vascular congestion such as hepatomegaly, peripheral or pulmonary edema)” accompanied by certain other features. Although there was evidence, such as the medical findings of Dr. Camevale, claimant’s treating cardiologist, that claimant suffers from congestive heart failure, there was also substantial evidence to the contrary. For example, Dr. Mancini, a consulting internist, found that although claimant had “documented congestive cardiomyopathy,” he had no congestive symptoms" }, { "docid": "23345246", "title": "", "text": "J. SPENCER BELL, Circuit Judge. This is an appeal from an order of the district court dated and filed October 6, 1964, which granted the Secretary’s motion for summary judgment and affirmed a decision of the hearing examiner denying the claimant, Clyde Dillon, a period of disability and disability insurance benefits under the Social Security Act, 42 U.S.C.A. §§ 416(i) and 423. The examiner, after considering the evidence introduced before him at a hearing on May 9, 1961, concluded that it “certainly do[es] not show that the claimant’s impairments in combination had reached a stage of severity to preclude substantial gainful employment when he last met the earnings requirements — March 31, 1960.” The Appeals Council affirmed the examiner’s decision on July 31, 1961. On review, the district judge upheld the Appeals Council. Considering the record before us as a whole, we do not think it contains substantial evidence to support the prior rulings adverse to the claimant. Accordingly, these rulings must be reversed. The claimant was born on May 20, 1906, and was fifty-four years old when he filed the disability claims presently in issue. His education is limited to writing his name, and he cannot read. He has worked most of his adult life as a coal miner, but he was laid off in June, 1958, when the mine at which he was employed at the time closed down. Attempts to locate other employment after this layoff were unsuccessful. Dillon asserts that he was disabled, as that term is used in the Social Security Act, when his insured status expired because of a combination of impairments to his heart, back, and lungs. Without intending to minimize in any way the seriousness of his lung difficulties, the claimant, through his counsel, placed primary emphasis before us upon his heart and back conditions. In support of his assertions, counsel for Dillon has directed our attention to the reports of the several doctors who examined the claimant between 1959 and 1961. Because both parties to this suit have placed such emphasis upon the objective medical findings, we deem it appropriate to" }, { "docid": "21887057", "title": "", "text": "ERVIN, Circuit Judge: Ruth H. Sims appeals the district court’s affirmance of the denial of disability benefits under the Social Security Act by the Secretary of Health, Education and Welfare. Although she appeared without counsel at the hearing before the Secretary, she is now represented by Legal Services attorneys who contend that the Administrative Law Judge did not give claimant the full and fair hearing required by 20 C.F.R. 404.-927 and 416.1441. We agree with that contention for the reasons set forth below, and remand the case to the Secretary for reconsideration in light of the evidence to be developed by claimant’s counsel at a new hearing. I. Claimant, now 41, has worked primarily as a maid, kitchen helper and laundry worker. She lives at home with her son and her apparently handicapped daughter. She claims to be unable to work because of high blood pressure, arthritis, “misery” in her knees and arms, a tendency to “blink out”, headaches, nervousness and sleeplessness. The medical evidence in the record at the time of the hearing consisted of four-year old medical data from an earlier hearing, a chest x-ray, an electrocardiogram and a general practitioner’s report that claimant had diabetes, an enlarged heart, hypertension and obesity; his opinion was that all were treatable conditions. At the hearing, the only new medical evidence introduced was claimant’s subjective descriptions of her physical and psychological ailments made in response to the Administrative Law Judge’s questions. Following a 1¼ hour hearing, the Administrative Law Judge determined that there was no medical evidence of an impairment that would prevent the claimant from engaging in her former jobs. Claimant later filed with the Appeals Council a doctor’s letter stating that she was under care for diabetes mellitus, osteoarthritis of the spine and knees and hypertensive cardiovascular disease; he concluded that she was totally disabled from work. The Appeals Council considered the report but affirmed the Secretary’s decision as being supported by substantial evidence, stating that conclusory opinions by physicians are not determinative of the question of disability. The Council pointed out that the physician had not supported his" }, { "docid": "22623686", "title": "", "text": "of capacity amounts to disability within the terms of the Act. Where it is not possible to reach a determination on such evidence it then becomes necessary to consider subjective testimony to determine accurately the effect of these impairments upon the Claimant. Such evidence may be entitled to great weight on the matter of disability, especially where such evidence is uncontradicted in the record. Even where medical opinion is very strong in favor of disability, this subjective evidence will always be a significant source of corroboration. Yet these first three elements will not conclusively determine whether Claimant is disabled within the meaning of the Act. Thus, even though severe physical limitation be established, it is still necessary in applying the legal standard to relate this limitation to the Claimant’s work history and educational background. Butler v. Flemming, 288 F.2d.591 (5 Cir. 1961). Indeed, the Secretary’s regulations, after setting forth examples of impairments which would ordinarily be considered as preventing substantial gainful activity, expressly provide: “Conditions which fall short of the levels of severity indicated must also be evaluated in terms of whether they do in fact prevent the individual from engaging in any substantial gainful activity.” Subpart P, j[404.1501 (d). We pass now to a consideration of the facts of this particular case. This Record contains the reports of seven physicians who examined Claimant between December 21, 1953, and May 20, 1959. Each report contains a statement of the objective medical findings made by the examining physician. Claimant was treated weekly by Dr. Thomas J. Howard during the period between February 25, 1958, and April 7, 1958. Prior to February 25,1958, Claimant’s medical record shows a history of hypertensive cardio-vascular disease, chronic bronchitis and emphysema, a myocardial injury, coronary heart disease, and of a disc condition in the lumbar region. Dr. Howard diagnosed severe emphysema. He noted acute respiratory attacks and dyspnea on slight exertion and that Claimant’s vital respiratory capacity was 75% below normal. He also found many ronchi and rales in the chest. As to Claimant’s heart, he found mild cardiac decompensation, a left cardiac enlargement, and he" }, { "docid": "22110467", "title": "", "text": "record also contained reports from several doctors who had examined plaintiff during the two years prior to his application for SSI benefits, indicating that plaintiff suffers from a variety of ailments including hypertensive cardiovascular disease, an enlarged heart, discogenic disease, and angina pectoris. A six-line note from plaintiff’s treating physician, Dr. Zelman, stated that plaintiff was under treatment for arteriosclerotic heart disease and hypertension, and that “he is unable to work because of his illness.” However, the record also contained evidence from another physician that plaintiff could stand for two hours, sit, bend, grasp, and manipulate virtually without problem, and lift as much as 60 pounds. In a brief opinion issued in June 1979, the ALJ concluded that plaintiff was not disabled within the meaning of the statute. Although conceding that “[t]he medical evidence ... indicates that the claimant’s impairments prevent him from performing his prior work as a moving man,” the ALJ nevertheless found that plaintiff “retains the functional capacity to work as a guard.” This determination became the final decision of the Secretary when the Appeals Council denied review in July 1979. In August, plaintiff filed this pro se action in the district court seeking review of the Secretary’s decision. After argument, and apparently without an opinion, Judge Weinstein granted the Secretary’s motion for judgment on the pleadings and dismissed the complaint in April 1980. This appeal by plaintiff pro se followed; on plaintiff’s motion, we assigned him counsel. II To be eligible for SSI disability payments, an applicant must demonstrate that “his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.... ” 42 U.S.C. § 1382e(a)(3)(B). A court reviewing the decision of the Secretary is limited by statute to determining whether the Secretary’s conclusions are supported by substantial evidence on the record as a whole. 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g)); see also Parker v. Harris, 626 F.2d" }, { "docid": "13407635", "title": "", "text": "chronic, mild, is of sufficient import to have much bearing on his activities either social or vocational * # A preponderance of medical evidence is to the effect that the claimant’s physical and mental impairments would not preclude his performing light or sedentary work. In the opinion of the court, the medical evidence is sufficient to protect the decision of the Secretary from reversal by this court. Claimant’s alleged heart condition is the predominant cause of his complaints. None of the examining physicians, however, detected anything wrong with claimant’s heart. All the x-rays taken of claimant’s heart show it to be normal in size and shape. All the EKG’s have been normal. If there is anything wrong with claimant’s heart, it is not demonstrable by medically acceptable clinical and laboratory diagnostic techniques. If claimant has no heart condition in fact, then his problem must be due to what is described as cardiac neurosis. However, neither the Veterans Administration nor Dr. Hogan described a patient who had a disabling psychological problem. The medical evidence also supports the conclusion that claimant’s back condition is not disabling. Claimant has what is described as hypertonic arthritis of the spine. The report from Dr. Robinson also indicates that claimant has a cervical disc lesion, but this is not labelled as disabling. The Veterans Administration doctors stated that claimant had a good range of motion in all joints and that he was able to perform normal activities, despite arthritic changes in his low back. The burden of proving disability in this proceeding lies with the claimant. It is not the initial responsibility of the Secretary to prove nondisability. Justice v. Gardner, 360 F.2d 998 (6th Cir. 1966). Claimant must show by producing objective medical facts that he suffers from impairments which preclude him from engaging in substantial gainful employment. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966), Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). This burden, however, need not be carried to a point beyond a reasonable doubt. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964). It is also clear that the" }, { "docid": "21199016", "title": "", "text": "as arbitrary. We find the evidence of disability overwhelming and the Secretary’s position without substantial support in the record considered as a whole. We are left with the firm conviction that the only basis for the Secretary’s denial of benefits is his excessive insistence on objective evidence of heart disease in disregard of the opinions of government doctors Viscuse and Jamison who did find objective evidence in an enlargement of Lackey’s heart. As this court recently-said in Dillon v. Celebrezze, 345 F.2d 753 (4th Cir., 1965), “clinical medical reports are not necessarily dispositive of the question of a claimant’s disability.” This is particularly true because, as the Secretary acknowledges, “medicine is a notoriously inexact science.” Therefore, objective medical findings, or the lack of them, are to be considered not in isolation, but along with the claimant’s subjective complaints, medical opinion evidence, and the claimant’s general background. Viewing the present record in light of this precept, there is no substantial basis for the rejection of the positive findings of heart disease by three government physicians. Moreover, even apart from the evidence of heart disease, there would be no substantial justification for the rejection of the considerable impressive evidence of other impairments including hypertension, pulmonary emphysema, spondylolisthesis, loss of hearing, an immobilized ankle and amputated finger, the existence of which the Secretary has not challenged, and which make out a prima facie showing of disability in the circumstances of this claimant. Arguably, a judge, an artist, or a scientist in his laboratory, restricted to sedentary work, might function acceptably despite such symptoms. A totally illiterate and unskilled person with the physical limitations could not possibly find employment at the only kind of laboring jobs he was ever fitted to perform. The examiner so fragmented his consideration of Lackey’s several ailments and the medical opinions regarding each of them that he failed properly to evaluate their effect upon him in combination. Dillon v. Celebrezze, supra. The Secretary’s conclusion cannot be sustained for an additional reason. Since it is beyond dispute, even according to the most adverse testimony, that the claimant’s physical condition prevents" }, { "docid": "22096950", "title": "", "text": "by objective findings. The Act defines disability as “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 to be of long-continued and indefinite duration.” The test is the capability of the particular claimant — not that of the average man — to engage in substantial gainful activity. Although inability must result from some medically determinable impairment, the emphasis on the individual requires consideration of subjective reactions. These must be appraised, to the extent possible, by medical experts. The administrators of the Act must then evaluate the medical evidence, consider the subjective symptoms, and determine ability to engage in the requisite activity. The findings of the Secretary based on the record and fair inferences therefrom are binding on the courts. The problem which arises in a case such as that at bar is the difficulty of disproving by evidence a claimant’s subjective statement of inability to work because of pain. Nevertheless, the Secretary must make the decision and the courts must review the record to find support for his action. In addition to the over-all complaint of pain, the claimant asserts four physical impairments.: convulsions, liver disorder, heart condition, and back injury. Three of these may be disposed of quickly. Thirteen doctors either testified or submitted written reports or did both. No medical evidence sustains the claims of convulsions or liver disorders. Substantial mqdical evidence supports the Secretary’s finding of a mild heart condition which “is not of such severity as to contribute significantly to inability to engage in any useful work.” Claimant’s case stands or falls on his claim of pain resulting from his back condition. He injured his back in a construction accident about 1932 and reinjured it in 1955 while lifting a 100-pound sack of flour. The several orthopedists who examined him were in substantial agreement that his freedom of movement is mildly restricted for a man of his years; that in the case of a younger man or of a man of generally better physical condition corrective surgery might" }, { "docid": "23345252", "title": "", "text": "show considerable narrowing of the cartilagenous spacings and sclerosis at the joint surfaces. The disc space shows a marked narrowing at L5-S1, the remainder of the disc spacings are normal. A degenerated disc is suspected at L5.” In addition to Dr. Preiser, at least four other doctors included comments and observations in their reports which established the existence of pulmonary and bronchial difficulties. Even Dr. William C. Stewart, whose report on September 21, 1960, was probably the report most favorable from an overall standpoint to the Secretary, conceded that Dillon had a “slight to mederate pulmonary disability.” In addition to the medical reports, there was testimony at the hearing that the claimant experienced severe and frequent heart and back pains, that he took nitroglycerin with some regularity for the relief of pain, that he had shortness of breath, that exercise was painful and even walking quickly exhausted him, that his activities had been so restricted due to his condition that he could no longer work in the garden or even pick up a quart pail of water, and that he had lost twenty-five pounds between 1958 and the time of the hearing. Far from disbelieving these statements, the hearing examiner indicated that he had the greatest of sympathy for the claimant and that he realized how uncomfortable his back and heart conditions made him feel at times. The examiner was apparently persuaded that the claimant was not entitled to a disability status by the reports of several physicians, particularly Drs. Stewart and McKenzie, which dealt primarily with Dillon’s heart condition. These doctors stated that they could find no objective indications that Dillon’s heart was impaired or that he had any heart disease. They reported that there was no heart enlargement, that no murmur could be heard, that the rhythm was regular, and that electrocardiograms were within normal limits. The examiner’s treatment of these reports, however, reveals the error we think he committed in deciding this case. We note parenthetically • that we have no quarrel with the law upon which the examiner relied; it was in his application of the" }, { "docid": "21199015", "title": "", "text": "that Lackey has never driven an automobile, but it is significant that the doctor treated seriously the symptoms of dizziness. One cannot help wondering what other abstentions, perhaps more relevant to the claimant’s situation, this advice implies. Despite another doctor’s opinion that Lackey could do “anything but heavy — active work,” he qualified this with a diagnosis of hypertension and cardiovascular disease and, apparently feeling the need for more exact information, suggested that a current electrocardiogram be obtained. No evidence was introduced before the hearing examiner as to the jobs which the claimant is capable of performing other than one doctor’s unspecific remark that Lackey can do “many types of factory work.” Just what this means there was no attempt to explain. No vocational counselor was called to show which jobs are within Lackey’s limited capabilities. Upon this record, surprisingly, the examiner found that “except for claimant’s limp, there was no evidence of a disability.” This is such a complete departure from the evidence, much of it undisputed, that the examiner’s conclusion must be regarded as arbitrary. We find the evidence of disability overwhelming and the Secretary’s position without substantial support in the record considered as a whole. We are left with the firm conviction that the only basis for the Secretary’s denial of benefits is his excessive insistence on objective evidence of heart disease in disregard of the opinions of government doctors Viscuse and Jamison who did find objective evidence in an enlargement of Lackey’s heart. As this court recently-said in Dillon v. Celebrezze, 345 F.2d 753 (4th Cir., 1965), “clinical medical reports are not necessarily dispositive of the question of a claimant’s disability.” This is particularly true because, as the Secretary acknowledges, “medicine is a notoriously inexact science.” Therefore, objective medical findings, or the lack of them, are to be considered not in isolation, but along with the claimant’s subjective complaints, medical opinion evidence, and the claimant’s general background. Viewing the present record in light of this precept, there is no substantial basis for the rejection of the positive findings of heart disease by three government physicians. Moreover," }, { "docid": "23345253", "title": "", "text": "of water, and that he had lost twenty-five pounds between 1958 and the time of the hearing. Far from disbelieving these statements, the hearing examiner indicated that he had the greatest of sympathy for the claimant and that he realized how uncomfortable his back and heart conditions made him feel at times. The examiner was apparently persuaded that the claimant was not entitled to a disability status by the reports of several physicians, particularly Drs. Stewart and McKenzie, which dealt primarily with Dillon’s heart condition. These doctors stated that they could find no objective indications that Dillon’s heart was impaired or that he had any heart disease. They reported that there was no heart enlargement, that no murmur could be heard, that the rhythm was regular, and that electrocardiograms were within normal limits. The examiner’s treatment of these reports, however, reveals the error we think he committed in deciding this case. We note parenthetically • that we have no quarrel with the law upon which the examiner relied; it was in his application of the proper legal standards to the facts of this particular case that we feel he erred. We think the examiner so fragmentized Dillon’s several ailments and the medical opinions regarding each of them that he failed properly to evaluate their effect in combination upon this claimant. It is not even questioned that Dillon had lung and back conditions which would qualify as “medically determinable physical or mental impairment^],” and although there is some conflict in it, there is ample evidence in this record to support an assertion that the claimant’s heart condition likewise was a medically determinable physical impairment. Furthermore, the question of whether a claimant is disabled, as that term is used in the Act, is an inquiry which must be directed to that particular individual, not to a theoretical average man or even to an average claimant. Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). Clyde Dillon, the claimant in this case, not only had the three medically determinable physical impairments previously mentioned, but these conditions caused him to experience frequent and" } ]

[ { "docid": "23230604", "title": "", "text": "designed to rationalize a decision already made. As the Eighth Circuit observed in Environmental Defense Fund, “[t]he unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives.” Id. at 298. NEPA requires that an EIS be prepared for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C.A. § 4332(2)(C) (1994). However, if, as here, an agency’s regulations do not categorically require the preparation of an EIS, then the agency must first prepare an EA to determine, whether the action will have a significant effect on the environment. See 40 C.F.R. § 1501.4 (1999); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). If, in light of the EA, the agency determines that its action will significantly affect the environment, then an EIS must be prepared; if not, then the agency issues a FONSI. See 40 C.F.R. §§ 1501.4, 1508.9 (1999); Salmon River, 32 F.3d at 1356. “If an agency decides not to prepare an EIS, it must supply a ‘convincing statement of reasons’ to explain why a project’s impacts are insignificant.” Blue Mountains, 161 F.3d at 1211 (quoting Save the Yaak, 840 F.2d at 717). In this case, the Federal Defendants did (1) prepare an EA, (2) decide that the Makah,whaling proposal would not significantly affect the environment, and (3) issue a FONSI, but they did so after already having signed two agreements binding them to support the Tribe’s proposal. Appellants assert that, in so doing, the Federal Defendants violated NEPA in several ways. Appellants argue that, although NOAA/NMFS ultimately prepared an EA, they violated NEPA because they prepared the EA too late in the process. According to appellants, “by making a commitment to authorize and fund the Ma-kah whaling plan, and then drafting a NEPA document which simply rubber-stamped the decision ..., defendants eliminated the opportunity to choose among alternatives, ... and seriously imped[ed] the degree to which their planning and decisions could reflect environmental values.” Additionally," } ]

[ { "docid": "22228658", "title": "", "text": "we need not forgive a “clear error of judgment.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). “An agency’s decision not to prepare an EIS will be considered unreasonable if the agency fails to supply a convincing statement of reasons why potential effects are insignificant.” Save the Yaak, 840 F.2d at 717. ANALYSIS 1. NEPA Requirements for an Environmental Impact Statement The National Environmental Policy Act (“NEPA”) requires a federal agency such as the Forest Service to prepare a detailed EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). NEPA “ensures that the agency ... will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). A threshold question in a NEPA case is whether a proposed project will “significantly affect” the environment, thereby triggering the requirement for an EIS. 42 U.S.C. § 4332(2)(C). As a preliminary step, an agency may prepare an EA to decide whether the environmental impact of a proposed action is significant enough to warrant preparation of an EIS. 40 C.F.R. § 1508.9. An EA is a “concise public document that briefly providefs] sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact.” Id. If an agency decides not to prepare an EIS, it must supply a “convincing statement of reasons” to explain why a project’s impacts are insignificant. Save the Yaak, 840 F.2d at 717. “The statement of reasons is crucial to determining whether the agency took a “hard look” at the potential environmental impact of a project.” Id. BMBP argues that the Forest Service did not take the requisite “hard look” at the environmental impacts of the Big Tower Project or the cumulative effects of the Big Tower Project and other proposed timber salvage sales. We agree. An EIS must be" }, { "docid": "17836363", "title": "", "text": "NEPA serves a dual purpose: to ensure informed decisionmaking by agency and to allow the public to play a role in the agency’s decisionmaking process and the implementation of the decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In analyzing whether an EIS or an EA suffices under NEPA, therefore, the court will look to the substance of those documents to determine whether they took the requisite “hard look” at environmental consequences, as well as the extent to which the public was able to participate in the process. This inquiry is not limited by a statute of limitations as long as the final agency action that requires the NEPA process is within that period. Defendants’ motion for summary judgment on the six-year statute of limitations is therefore DENIED. B. NEPA Violations 1. Standard of Review The Administrative Procedure Act governs judicial review of agency decisions under NEPA. NEPA aims to promote environmentally sensitive governmental decision-making, without prescribing substantive standards. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Tillamook County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1143 (9th Cir.2002). Toward that end, the Congress by statute requires, with some exceptions, that all federal agencies consider the environmental impact of their actions. Anderson v. Evans, 350 F.3d 815, 829(9th Cir.2003). The adequacy of an Environmental Impact Statement (EIS) is judged by whether it constituted a “detailed statement” that took a “hard look” at all of the potentially significant environmental consequences of the proposed action and reasonable alternatives thereto, considering all relevant matters of environmental concern. 42 U.S.C. § 4332(2)(a); Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); 40 C.F.R. § 1502.1. The critical question is whether the EIS contains a “reasonably thorough discussion of the significant aspects of the probable environmental consequences” of the proposed action as well as a range of alternatives to that action. California v. Block, 690 F.2d 753, 761 (9th Cir.1982). The “hard look” mandated by Congress" }, { "docid": "23201598", "title": "", "text": "of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its deci-sionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citation and internal quotation marks omitted). NEPA does not contain substantive environmental standards. Rather, it “establishes ‘action-forcing’ procedures that require agencies to take a ‘hard look’ at environmental consequences.” Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.2000); see also Robert son v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires federal agencies to prepare an EIS prior to taking “major Federal actions significantly affecting the quality” of the environment. 42 U.S.C. § 4332(2)(C). Some proposed federal actions categorically require the preparation of an EIS. If the proposed action does not categorically require the preparation of an EIS, the agency must prepare an EA to determine whether the action will have a significant effect on the environment. See 40 C.F.R. § 1501.4(Council on Environmental Quality (“CEQ”) regulations implementing NEPA); Metcalf, 214 F.3d at 1142. If the EA reveals that the proposed action will significantly affect the environment, then the agency must prepare an EIS. If the EA reveals no significant effect, the agency may issue a Finding of No Significant Impact (“FONSI”). See 40 C.F.R. §§ 1501.4, 1508.9; see also Metcalf, 214 F.3d at 1142. B. The Coos Bay Environmental Impact Statement The Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. § 1701 et seq., requires the BLM to prepare RMPs for the various districts under its control. See 43 U.S.C. § 1712. By definition, preparation of an RMP is a “major Federal action significantly affecting the quality of the human environment,” and so categorically requires preparation of an EIS. See 43 C.F.R. § 1601.0-6(BLM regulations implementing FLPMA). In 1994, the BLM published an EIS for the proposed RMP for the Coos Bay District. The Coos Bay District is within the geographic range of the Port Orford Cedar. The" }, { "docid": "23179123", "title": "", "text": "NEPA NEPA was enacted to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and],to enrich the understanding of the ecological systems and natural resources important to the Nation.” 42 U.S.C. § 4321. To achieve its goals, NEPA directs federal agencies proposing “major Federal actions significantly affecting the quality of the human environment” to prepare a detailed statement on the environmental impact of the proposed action prior to implementation of the proposal. § 4332(2)(C)(i). The required environmental impact statement must address any adverse unavoidable environmental effects resulting from the implementation, alternatives to the proposed action, the relationship between short-term uses and the long-term maintenance of the environment, and any irretrievable commitments of resources involved in the proposed action. § 4332(2X0. This detailed statement “insures the integrity of the agency process by forcing it to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug” and serves as an “environmental full disclosure law so that the public can weigh a project’s benefits against its environmental costs.” Sierra Club v. United States Army Corps of Eng’rs (Sierra Club II), 772 F.2d 1043, 1049 (2d Cir.1985); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). Whether a particular proposed action significantly affects the environment, thus necessitating the preparation of an EIS, is a threshold question. The Council on Environmental Quality (CEQ), created under NEPA, is responsible for promulgating regulations that supplement NEPA’s statutory requirements. The CEQ regulations provide that if the agency is uncertain whether the impacts rise to the level of a major federal action requiring an EIS, the agency must prepare an environmental assessment. 40 C.F.R. §§ 1501.3, 1501.4, 1508.9. An EA is “a concise document that briefly discusses the relevant issues and either reaches a conclusion that preparation of [an] EIS is necessary or concludes with a finding of no significant impact, in which case preparation" }, { "docid": "15404170", "title": "", "text": "L.Ed.2d 576 (1976). In fact, “[t]he only role” for a court in applying the arbitrary and capricious standard in the NEPA context “is to insure that the agency has taken a ‘hard look’ at environmental consequences.” Id. NEPA sets forth a broad national commitment to protecting and promoting the environment. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Like the APA, NEPA “does not mandate particular results, but simply prescribes the necessary process. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Id. (internal citations omitted). One process required under NEPA is that all federal agencies must prepare an “environmental impact statement” (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947, 949 (7th Cir.2000). This report is “a detailed analysis and study conducted to determine if, or the extent to which, a particular agency action will impact the environment.” Heartwood, 230 F.3d at 949. In evaluating whether an EIS is necessary, Council on Environmental Quality (“CEQ”) regulations instruct that the term “significantly” in the statute requires consideration of both “context” and “intensity.” 40 C.F.R. § 1508.27(a)-(b). Intensity in turn requires agencies to consider, among other factors, “the degree to which the proposed action affects public health and safety”; “the degree to which the effects on the quality of the human environment are likely to be highly controversial”; and “the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.” Id. § 1508.27(b)(2), (4), (5). These considerations are often spelled out in the preliminary stages of a proposed project in an environmental assessment (“EA”). An EA is a shorter, rough-cut, low-budget EIS which is mandated when, as here, proposed action is neither one normally requiring an EIS nor one categorically excluded from the EIS process. See 40 C.F.R. § 1508.9; 23" }, { "docid": "10159659", "title": "", "text": "then reviews the proposed action and prepares a \"biological opinion” (“BiOp”) that evaluates whether and the extent to which the action may impact the species. Id. § 1536(b); 50 C.F.R. § 402.12. If the NMFS or the FWS finds that the proposed action would riot jeopardize any species’ continued existence, it issues a statement permitting the “taking” 6f a particular number of protected animals “if such taking is incidental to, and not the purpose of, the carrying out of' an otherwise lawful activity.”' 16 U.S.C. § 1539(a)(1)(B).' The FWS also has authority to enforce the MBTA, id. §§ 703-12; 50 C.F.R. § 10.1, which strictly prohibits the taking of any migratory bird the Act protects except under the terms of a valid permit issued by the Secretary of the Interior, id. § 703(a). The Secretary of the Interior has issued regulations authorizing various types of exemptions to the MBTA permitting the taking of migratory birds under certain circumstances. See 16 U.S.C. § 704(a). In addition to the substantive mandates of the ESA and the MBTA, both the NMFS- and the FWS are subject to NEPA’s procedural requirements. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is- concerned with process alone and “merely prohibits uninformed—rather than unwise—agency action.” Id. at 351, 109 S.Ct. 1835. NEPA requires federal agencies to prepare environmental impact statements (“EIS”) ■ detailing the effects of any proposed action-that stands to have a significant impact on the environment. See 42 U.S.C. § 4332(C); Robertson, 490 U.S. at 350, 109 S.Ct. 1835. An agency may also prepare an environmental assessment (“EA”) to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4(b), 1508.9(a)(1); Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 599 (9th Cir. 2010). If the EA shows that the proposed action may significantly affect the environment, then the agency must prepare a full EIS. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013). Otherwise, the agency issues a finding of no significant impact and the proposed" }, { "docid": "22563290", "title": "", "text": "judgment and dismissed the case. The NPCA appealed, and Westours cross-appealed. ANALYSIS I. THE PARKS SERVICE VIOLATED NEPA A. Standard of Review We review a district court’s decision to grant or deny a motion for summary judgment de novo. Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.2000) (citation omitted). In reviewing an agency’s decision not to prepare an EIS under NEPA, we employ an arbitrary and capricious standard, Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998), cert. denied, 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999), that requires us to determine whether the agency has taken a “hard look” at the consequences of its actions, “based [its decision] on a consideration of the relevant factors,” id., and provided a “convincing statement of reasons to explain why a project’s impacts are insignificant.” Metcalf, 214 F.3d at 1142. B. Environmental Assessment NEPA requires that an Environmental Impact Statement (EIS) be prepared for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C.A. § 4382(2)(C). However, if, as here, an agency’s regulations do not categorically require the preparation of an EIS, then the agency must first prepare an Environmental Assessment (EA) to determine whether the action will have a significant effect on the environment. See 40 C.F.R. § 1501.4; Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). If the EA establishes that the agency’s action “may have a significant effect upon the ... environment, an EIS must be prepared.” Foundation for N. Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1178 (9th Cir.1982) (emphasis added); see also Blue Mountains, 161 F.3d at 1212. If not, the agency must issue a Finding of No Significant Impact (FON-SI), see Blue Mountains, 161 F.3d at 1212; 40 C.F.R. §§ 1501.4, 1508.9, accompanied by “ ‘a convincing statement of reasons’ to explain why a project’s impacts are insignificant.” Blue Mountains, 161 F.3d at 1212 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988)). Whether there may be a significant effect on the environment requires" }, { "docid": "2835049", "title": "", "text": "U.S.C. § 4321. The purpose of NEPA was “to promote efforts which will prevent or eliminate damage to the environment,” as well as “to enrich the understanding of the ecological systems and natural resources important to the Nation.” Id. NEPA does not contain substantive requirements that dictate a particular result; instead, NEPA is aimed at ensuring agencies make informed decisions and “contemplate the environmental impacts of [their] actions.” Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (concluding that NEPA “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.”) In pursuit of these goals, NEPA mandates that all federal agencies take a “hard look” at the environmental consequences of all proposed “major Federal actions significantly affecting the quality of the human environment” through the preparation of an EIS. 42 U.S.C. § 4332(2)(C). In addition to aiding internal agency decision-making, publication of an EIS “also serves a larger informational role. It gives the public the assurance that the agency has indeed considered environmental concerns in its decisionmaking process, and, perhaps more significantly, provides a springboard for public comment.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835 (internal quotations and citations omitted). The Ninth Circuit has interpreted this provision as requiring agencies to prepare an EIS “where there are substantial questions about whether a project may cause significant degradation of the human environment.” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.2005). The Council on Environmental Quality (“CEQ”) and other federal agencies’, including the Navy’s, regulations implement NEPA. See, e.g., 40 C.F.R. §§ 1500 et seq.; 32 C.F.R. §§ 775 et seq. Under these regulations, an agency may prepare an EA to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4, 1508.9(b); see" }, { "docid": "14069504", "title": "", "text": "commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citing 42 U.S.C. § 4331). It was created to advance “three major purposes[,]” namely: (1) to declare protection of environmental quality to be a national policy and provide a mandate to all Federal agencies to effect that policy; (2) to create a Council on Environmental Quality to insure that the mandate is carried out; and (3) to establish a set of ‘action forcing’ procedures requiring an environmental impact statement on any proposed major Federal action which could significantly affect the quality of the environment. S.Rep. No. 94-152, at 3 (1975). NEPA requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (“EIS”) in “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment!;.]” 42 U.S.C. § 4332(C); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 15-16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The EIS is a “detailed statement of environmental consequences[.]” Kleppe v. Sierra Club, 427 U.S. 390, 394, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). “The statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement serves NEPA’s ‘action-forcing’ purpose in two important respeets[,]” Robertson, 490 U.S. at 349, 109 S.Ct. 1835, by (1) “ ‘ensuring] that the agency, in reaching its decision, will have available and will carefully consider, detailed information concerning significant environmental impacts’ ” and (2) “ ‘guaranteeing] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision!;,]’ ” Blue Ridge Envtl. Def League v. NRC, 716 F.3d 183, 188 (D.C.Cir.2013) (quoting Robertson, 490 U.S. at 349, 109 S.Ct. 1835). There are exceptions to the NEPA requirement that agencies prepare an EIS, however, including that an agency need not prepare an EIS (1) “if it finds, on the basis of a shorter ‘environmental assessment’ (EA), that the" }, { "docid": "1377209", "title": "", "text": "conditions” that “are not necessarily taken into account when consumers purchase new vehicles.” Id. at 4. B. National Environmental Policy Act NEPA requires a federal agency “to the fullest extent possible,” to prepare “a detailed statement on ... the environmental impact” of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C)(i) (2007); see also 40 C.F.R. § 1500.2 (2007). The purpose of NEPA is twofold: “ ‘ensure[ ] that the agency ... will have available, and will carefully consider, detailed information concerning significant environmental impacts[, and] guarantee[ ] that the relevant information will be made available to the larger [public] audience.’ ” Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)); see also 40 C.F.R. § 1500.1(b) (stating that environmental information must be provided “before decisions are made and before actions are taken.”). “NEPA expresses a Congressional determination that procrastination on environmental concerns is no longer acceptable.” Found, for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172, 1181 (9th Cir.1982). NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). If there is a substantial question whether an action “may have a significant effect” on the environment, then the agency must prepare an Environmental Impact Statement (EIS). See, e.g., Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998) (internal quotation marks omitted). An EIS should contain a discussion of significant environmental impacts and alternatives to the proposed action. See 40 C.F.R. §§ 1502.1, 1502.14, 1508.7. As a preliminary step, an agency may prepare an Environmental Assessment (EA) in order to determine whether a proposed action may “significantly affect[ ]” the environment and thereby trigger the requirement to prepare an EIS. See 40 C.F.R. § 1508.9(a)(1) (2007). An EA is “a concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” Id. An EA “[s]hall include brief" }, { "docid": "11699323", "title": "", "text": "the obligation to consider- every significant aspect of the environmental impact of a proposed action.” Baltimore Gas & Elec. Co. v. Natural. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotation omitted). “Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Id. Accordingly, NEPA’s “mandate is essentially procedural.” City of Alexandria, Va., 198 F.3d at 866 (internal quotation omitted); North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C.Cir.1980) (explaining that NEPA requirements are essentially procedural and a court should not substitute its own policy judg ment for that of the agency). “NEPA merely prohibits uninformed — rather than unwise — agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). “The major ‘action-forcing’ provision of NEPA is the requirement that ‘all agencies of the Federal government’ prepare a detailed environmental analysis for ‘major Federal actions significantly affecting the quality of the human environment.’ ” Found, on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C.Cir.1985) (quoting 42 U.S.C. § 4332(C); S.Rep. No. 91-296, 91st Cong., 1st Sess. 19 (1969)). This analysis is called an Environmental Impact Statement (“EIS”). See 42 U.S.C. § 4332(C). An EIS is not required if the agency makes a determination based on a more limited document, an Environmental Assessment (“EA”), that the proposed action would not have a significant impact on the environment. Sierra Club v. Mainella, 459 F.Supp.2d 76, 81 (D.D.C.2006) (citing 40 C.F.R. §§ 1501.4, 1508.13). “The EA is to be a ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ ” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 40 C.F.R. § 1508.9(a)). “If, pursuant to the EA, an agency determines that an EIS is not required under applicable [regulations issued by the Council on Environmental Quality], it must issue a ‘finding of no significant impact’ (‘FONSI’), which briefly presents the reasons why the proposed" }, { "docid": "10159660", "title": "", "text": "both the NMFS- and the FWS are subject to NEPA’s procedural requirements. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is- concerned with process alone and “merely prohibits uninformed—rather than unwise—agency action.” Id. at 351, 109 S.Ct. 1835. NEPA requires federal agencies to prepare environmental impact statements (“EIS”) ■ detailing the effects of any proposed action-that stands to have a significant impact on the environment. See 42 U.S.C. § 4332(C); Robertson, 490 U.S. at 350, 109 S.Ct. 1835. An agency may also prepare an environmental assessment (“EA”) to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4(b), 1508.9(a)(1); Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 599 (9th Cir. 2010). If the EA shows that the proposed action may significantly affect the environment, then the agency must prepare a full EIS. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013). Otherwise, the agency issues a finding of no significant impact and the proposed action can proceed without further study. Id. II. The Hawaii-Based Longline Fishing Industry “Longline” fishing is a. commercial fishing method that involves -reeling out—or. “setting”—a single, horizontal-mainline to which shorter “branchlines” are attached at intervals. Each dangling branchline carries baited .hooks. .A typical longline set can use several hundred or thousand individual hooks, allowing a single fishing vessel to spread its efforts over a large area. While .the mainline is in the water* • the fishing equipment often ensnares birds, sea turtles, and other marine wildlife in addition to the target fish. This incidental taking of non-target animals is known as “bycatch.” The NMFS collects bycatch statistics by tracking the number of times a non-target animal is hooked or entangled by fishing gear. The most commonly observed non-target animal interactions are with Northern Pacific loggerhead and leatherback sea turtles, both of which are currently listed under the ESA as “endangered.” See' 50 C.F.R. § 17.11. In addition, several types of albatross interact often with the longline fisheries, including the black-footed albatross and the Laysan albatross." }, { "docid": "732342", "title": "", "text": "Secretary to protect the natural and other values of such lands.” 16 U.S.C. § 3170(b). NEPA requires the preparation of an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The regulations direct agencies to prepare an “environmental assessment” (“EA”) to determine whether an EIS is necessary unless the proposal is one that “[njormally requires” an EIS, or is one that “[n]or-mally does not require” either an EIS or an EA. See 40 C.F.R. § 1501.4(a)-(b). Even if an EA is not required, however, “[ajgencies may prepare an environmental assessment on any action at any time in order to assist agency planning and deci-sionmaking.” 40 C.F.R. § 1501.3(b). NEPA ensures that an agency, “in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts,” and will make such information available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Id. at 350, 109 S.Ct. 1835. Significantly, “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Id. This case differs from Vogler only in that the Department of the Interior has, by regulation, incorporated a NEPA review process into its permit-granting procedure. We see no per se conflict between NEPA’s information-gathering and analysis requirements and ANILGAs requirement of “adequate and feasible access ... subject to reasonable regulations ... to protect the natural and other values of such lands.” 16 U.S.C. § 3170(b). NEPA expressly provides that “to the fullest extent possible ... the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act].” 42 U.S.C. § 4332. In our view, NEPA helps rather than hinders the NPS in fulfilling its statutory duty under ANIL-CA to balance “adequate and feasible access” with the protection of “natural" }, { "docid": "15214553", "title": "", "text": "granted, as to this claim. D. Were the Actions of the Federal Defendants “not in accordance with law” (NEPA) and Therefore In Violation of the APA? The purpose of NEPA is to establish a “broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). “Simply by focusing the agency’s attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Id. at 349, 109 S.Ct. 1835. To fulfill this policy, NEPA requires all federal agencies to prepare an environmental impact statement (“EIS”) whenever they propose “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Regulations promulgated by the Council on Environmental Quality (“CEQ”), 40 C.F.R. §§ 1500-1508, provide the agencies guidance in their task of complying with NEPA. Additional information is provided for NMFS’ compliance with NEPA in NOAA Administrative Order 216-6 (“AO 216-6”). The NEPA regulations, 40 C.F.R. § 1501.4, provide the following guidance to agencies who must decide whether they need to perform an EIS: In determining whether to prepare an environmental impact statement the Federal agency shall: (a) Determine under its procedures supplementing these regulations (described in § 1507.3) whether the proposal is one which: (1) Normally requires an environmental impact statement, or (2) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion). (b) If the proposed action is not covered by paragraph (a) of this section, prepare an environmental assessment (§ 1508.9). The agency shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by § 1508.9(a)(1). (c) Based on the environmental assessment make its determination whether to prepare an environmental impact statement. (d) Commence the scoping process (§ 1501.7), if the agency will prepare an environmental impact statement. (e) Prepare a finding of no significant impact (§ 1508.13), if the agency determines on the basis of the environmental assessment" }, { "docid": "17093094", "title": "", "text": "law.’ ” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1268 (10th Cir.2004) (quoting Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir.2002), modified on reh’g, 319 F.3d 1207 (10th Cir.2003)). In reviewing the agencies’ action, “we apply the same deferential standard to the administrative record as did the district court.” Id. We may set aside agency action “only for substantial procedural or substantive reasons.” Id. (further citation omitted). I. NEPA NEPA, 42 U.S.C. §§ 4321-4370Í, “ ‘prescribes the necessary process’ by which federal agencies must ‘take a “hard look” at the environmental consequences’ of the proposed courses of action.” Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1150 (10th Cir.2004) (quoting Utahns for Better Transp., 305 F.3d at 1162-63). It imposes no “substantive limits on agency conduct.” Friends of the Bow v. Thompson, 124 F.3d 1210, 1213 (10th Cir.1997) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). “Rather, once environmental concerns are adequately identified and evaluated by the agency, NEPA places no further constraint on agency actions.” Pennaco Energy, Inc., 377 F.3d at 1150 (further quotation omitted). Before an agency may take “major Federal actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C), an agency must prepare an environmental impact statement (“EIS”) in which the agency considers the environmental impacts of the proposed action and evaluate “alternatives to the proposed action,” id. § 4332(2)(C)(iii), including the option of taking “no action,” 40 C.F.R. § 1502.14(d). However, “[a]gencies need not prepare a full EIS ... if they initially prepare the less detailed environmental assessment (‘EA’) and, based on the EA, issue a finding of no significant impact (‘FONSI’), concluding that the proposed action will not significantly affect the environment.” Lee v. U.S. Air Force, 354 F.3d 1229, 1237 (10th Cir.2004) (further quotation omitted); see also 40 C.F.R. § 1501.4 (providing that the agency shall prepare an EA to determine whether an EIS is required). An agency’s decision to issue a FONSI rather than prepare an EIS “is" }, { "docid": "19702227", "title": "", "text": "or NEPA have been established. PROCEDURAL FRAMEWORK Congress enacted NEPA in 1969 to protect the environment by requiring certain procedural safeguards before an agency takes action affecting the environment. The NEPA process is designed to “ensure that the agency ... will have detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998). The purpose of NEPA is to “ensure a process, not to ensure any result.” Id. “NEPA emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision-making to the end that the agency will not act on incomplete information, only to regret its decision after is it too late to correct.” Center for Biological Diversity v. U.S. Forest Serv., 349 F,3d 1157, 1166 (9th Cir.2003). Complete analysis under NEPA also assures that the public has sufficient information to challenge the agency’s decision. Robertson v. Methow Valley Citizens, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998). NEPA requires that all federal agencies, including the Forest Service, prepare a “detailed statement” that discusses the environmental ramifications, and alternatives, to all “major Federal Actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An agency must take a “hard look” at the consequences, environmental impacts, and adverse environmental effects of a proposed action within an environmental impact statement (“EIS”), when required. Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). To determine whether an EIS is required, an agency may first prepare an environmental assessment (“EA”). The objective of an EA is to “[bjriefly provide sufficient evidence and analysis to determining whether to prepare” an EIS. 40 C.F.R. § 1508.9(a)(1). If the EA indicates that the federal action may significantly affect the quality of the human environment, the agency must prepare an EIS. 40 C.F.R. § 1501.4; 42 U.S.C. § 4332(2)(C). In the event an agency determines" }, { "docid": "11698499", "title": "", "text": "706(2)(A)); Tillamook County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1143 (9th Cir.2002). More specifically, this court must determine whether the agencies that prepared the EA took a “ ‘hard look’ at the environmental consequences” of the proposed action. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (citing Oregon Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997)). The court must defer to an agency conclusion that is “fully informed and well-considered,” but need not rubber stamp a “clear error of judgment.” Blue Mountains, 161 F.3d at 1211 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988) and Marsh v. Oregon Natural Res. Council, 490 U.S. 860, 378, 109 S.Ct. 1851, 104. L.Ed.2d 377 (1989)). B. NEPA Standards NEPA is a statute that aims to promote environmentally sensitive governmental decision-making, without prescribing any substantive standards. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Tillamook County, 288 F.3d at 1143. Toward that end, the statute requires, with some exceptions, that all federal agencies consider the environmental impact of their actions. If a federal action “significantly [affects] the quality of the human environment,” then the implementing agency or agencies must prepare an EIS providing a detailed and comprehensive analysis of the potential environmental impacts of the proposed action. See 42 U.S.C. § 4332(C); 40 C.F.R. § 1502 et seq. The EIS must also suggest and analyze the environmental impact of alternatives to the proposed action. 42 U.S.C. §§ 4332(C) & (E). Regulations promulgated by the Council on Environmental Quality provide factors that agencies must consider in deciding whether to prepare an EIS and emphasize the importance of involving the public in NEPA evaluations. 40 C.F.R. §§ 1500.2, 1502.4(b). The public must be given an opportunity to comment on draft EAs and EISs, and public hearings are encouraged to facilitate input on the evaluation of proposed actions. See 40 C.F.R §§ 1503.1, 1506.6. The CEQ regulations define the term “significantly” for purposes of NEPA as requiring analysis of both the “context” and" }, { "docid": "5724652", "title": "", "text": "has not been entrusted to the Corps. Where Chevron deference is not applicable and an agency’s conclusion is predominately legal in character, as contrasted to one resting on fact finding or technical expertise, a reasonableness standard of review applies. Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir.1998); Alaska Wilderness Rec. & Tourism v. Morrison, 67 F.3d 723, 727 (9th Cir.1995). NEPA is intended to assure that federal agencies consider the environmental consequences of their actions. It has been characterized as a statute which imposes procedural “action forcing” obligations on federal agencies, but it does not dictate a particular result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). It follows that when measuring compliance with NEPA a court looks to see that adequate consideration has been afforded environmental consequences, rather than to see that the decision ultimately taken is in some objective sense correct. E. National Environmental Policy Act Under NEPA, a federal agency is required to prepare an environmental impact statement (“EIS”) for any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). To determine whether a proposed action significantly affects the quality of the human environment, the federal agency prepares an environmental assessment (“EA”). 40 C.F.R. § 1501.4. An EA is “a concise public document ... that serves to ... [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). An EA must “include brief discussions of the need for the proposal, of alternatives as required by § 1002(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” Id. at § 1508.9(b). If the agency concludes in the EA that the proposed action will not significantly affect the environment, the agency is not required to prepare an EIS, but instead prepares a “finding of no significant impact” (“FONSI”). 40 C.F.R. § 1508.13. The Decision Document recites that it is the EA for NWP 29. (Decision Document at p." }, { "docid": "13019005", "title": "", "text": "long as agency followed NEPA’s procedures). “NEPA merely prohibits uninformed — rather than unwise — agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Agency actions with adverse environmental effects can nonetheless be NEPA-compliant where “the agency has considered those effects and determined that competing policy values outweigh those costs.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir.2009) (internal citations omitted). Under NEPA, an agency must prepare an Environmental Impact Statement for any proposed major federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (2006). In an EIS, the agency is required to “take a ‘hard look’ at the environmental consequences before taking a major action.” Baltimore Gas, 462 U.S. at 97, 103 S.Ct. 2246 (citations omitted). An EIS must detail the environmental impact of the proposed action, any adverse effects, alternatives to the proposed action, the relationship between man’s short-term uses and the long-term effects, and any irreversible commitments of resources. Id. at 89 n. 1, 103 S.Ct. 2246; see also Fund for Animals v. Hall, 777 F.Supp.2d 92, 96 (D.D.C.2011). To determine whether an agency must prepare an EIS, it will first prepare an Environmental Assessment. See 40 C.F.R. § 1501.4(b) (2012). An EA is a “concise public document” that “[bjriefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” Id. § 1508.9(a). The EA must discuss the need for the proposal, the alternatives, and the environmental impacts of the proposed action and the alternatives. Id. § 1508.9(b). If, after preparing an EA, the agency determines that a full EIS is not necessary, it must prepare a Finding of No Significant Impact (FONSI) setting forth the reasons why the action will not have a significant impact on the environment. Id. §§ 1501.4(e), 1508.13; see Flaherty v. Bryson, 850 F.Supp.2d 38, 45 (D.D.C.2012); In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litig., 818 F.Supp.2d 214, 222 (D.D.C.2011). This is what occurred here." }, { "docid": "1377285", "title": "", "text": "goal of energy conservation and NEPA’s goals of “helping] public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment,” 40 C.F.R. § 1500.1(c), and “insur[ing] that environmental information is available to public officials and citizens before decisions are made and before actions are taken,” id. § 1500.1(b), are complementary. NEPA prohibits uninformed agency action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). “The procedures included in § 102 of NEPA are not ends in themselves. They are intended to be ‘action forcing.’ The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives.” Envtl. Def. Fund, Inc. v. Corps of Eng’rs of the U.S. Army, 470 F.2d 289, 298 (8th Cir.1972) (citation omitted). 2. Sufficiency of the Environmental Assessment We examine the EA with two purposes in mind: to determine whether it has adequately considered and elaborated the possible consequences of the proposed agency action when concluding that it will have no significant impact on the environment, and whether its determination that no EIS is required is a reasonable conclusion. Even though an EA need not “conform to all the requirements of an EIS,” it must be “sufficient to establish the reasonableness of th[e] decision” not to prepare an EIS. Found. for N. Am. Wild Sheep, 681 F.2d at 1178 n. 29 (1982); see also 40 C.F.R. § 1508.9(a)(1). An EA “[s]hall include brief discussions of the need for the proposal ... [and] the environmental impacts of the proposed action and alternatives.” 40 C.F.R. § 1508.9(b). An EA “must in some circumstances include an analysis of the cumulative impacts of a project.... An EA may be deficient if it fails to include a cumulative impact analysis .... ” Native Ecosystems Council v. Dombeck, 304 F.3d 886, 895 (9th Cir.2002); see also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993-94 (9th Cir.2004);" } ]

[ { "docid": "22716781", "title": "", "text": "structure and purpose of the Bankruptcy Act as a whole, as well as the particular provisions of the Act brought in question. Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 431 and n. 7. When Congress enacted general revisions of the bankruptcy laws in 1898 and 1938, it gave “special -attention to the subject of making [the bankruptcy laws] inexpensive in [their] administration.” H. R. Rep. No. 1228, 54th Cong., 1st Sess., p. 2; H. R. Rep. No. 1409, 75th Cong., 1st Sess., p. 2; S. Rep. No. 1916, 75th Cong., 3d Sess., p. 2. Moreover, this Court has long recognized that a chief purpose of the bankruptcy laws is “to secure a prompt and effectual administration and settlement of the estate of all bankrupts within a limited period,” Ex parte Christy, 3 How. 292, 312, and that provision for summary disposition, “without regard to usual modes of trial attended by some necessary delay,” is one of the means chosen by Congress to effectuate that purpose, Bailey v. Glover, 21 Wall. 342, 346. See generally Wiswall v. Campbell, 93 U. S. 347, 350- It is equally clear that the expressly granted power to “allow,” “disallow” and “reconsider” claims, Bankruptcy Act § 2a (2), 11 U. S. C. § 11 (a)(2) (1964 ed.), which is of “basic importance in the. administration of a bankruptcy estate,” Gardner v. New Jersey, 329 U. S. 565, 573, is to be exercised in summary proceedings and not by the slower and more expensive processes of a plenary suit. U. S. Fidelity Co. v. Bray, 225 U. S. 205, 218; Wiswall v. Campbell, 93 U. S. 347, 350-351. This power to allow or to disallow claims includes “full power to inquire into the validity of any alleged debt or obligation of the bankrupt upon which a demand or a claim against the estate is based. This is essential to the performance of the duties imposed upon it.” Lesser v. Gray, 236 U. S. 70, 74. The trustee is enjoined to examine all claims and to present his objections, Bankruptcy Act § 47a (8), 11 U. S." } ]

[ { "docid": "10190614", "title": "", "text": "debtor was judicially estopped from disavowing participation in dealership when former successful assertion of substantial participation now worked to his detriment). These general statements of the law on judicial estoppel, while supported by logic and by respectable authorities, unfortunately for the Debtor, have no relevance and applicability to valuation of property in a case under Title 11, for the following reasons: First, it is quite common that immediately after the commencement of a Chapter 11 ease the secured creditors, like Mellon in this instance, file a Motion and seek adequate protection. In this context, the secured party must show that it is fully secured because an undersecured creditor is not entitled to adequate protection unless it is able to show decrease in value of its collateral, i.e., economic depreciation of the property, caused by the passage of time. United Savings Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Second, it is equally possible and not unlikely that the secured creditors might very well have been fully secured creditors at the initial stage of the Chapter 11 case, thus entitled to adequate protection, but may very well have become grossly un-dersecured at the time the case ultimately reached the confirmation stage, and by the time proof of claims had to be filed. Third, § 506 clearly permits bifurcation of a secured claim into a secured and an unsecured portion. In addition, the Section also provides that “Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.” (emphasis supplied). This is what occurred in the present instance. The Debtor failed to comply with the adequate protection order entered in January, 1992, which determined the balance owed on Mellon’s mortgage to be more than $3 Million. In addition, the property is further encumbered by unpaid real estate taxes in excess of $2 Million and a lien held by ODD" }, { "docid": "18016771", "title": "", "text": "unrelated to reorganization. In re Marsch, 36 F.3d at 828 (citations omitted). It is easy to see why courts have required Chapter 11 petitioners to act within the scope of the bankruptcy laws to further a valid reorganizational purpose. Chapter 11 vests petitioners with considerable powers — the automatic stay, the exclusive right to propose a reorganization plan, the discharge of debts, etc. — that can impose significant hardship on particular creditors. When financially troubled peti tioners seek a chance to remain in business, the exercise of those powers is justified. But this is not so when a petitioner’s aims lie outside those of the Bankruptcy Code. See United Sav. Ass’n v. Timbers of Inwood Forest Assocs., Ltd. (In re Timbers of Inwood Forest Assocs., Ltd.), 808 F.2d 363, 373 (5th Cir.1987) (en banc), aff'd, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (stating that if Chapter 11 plan does not have a rehabilitative purpose, the “statutory provisions designed to accomplish the reorganizational objectives become destructive of the legitimate rights and interests of creditors”); In re Little Creek, 779 F.2d at 1072 (explaining that Chapter 11 powers should be given only to debtors with “clean hands”); Furness, 35 B.R. at 1009 (“Chapter 11 was designed to give those teetering on the verge of a fatal financial plummet an opportunity to reorganize on solid ground and try again, not to give profitable enterprises an opportunity to evade contractual or other liabilities.”); see also 7 Collier on Bankruptcy at 1112-22 (stating that dismissal is appropriate when costs of Chapter 11 are not justified). Courts, therefore, have consistently dismissed Chapter 11 petitions filed by financially healthy companies with no need to reorganize under the protection of Chapter 11. See In re Marsch, 36 F.3d at 828-29; In re Argus Group 1700, 206 B.R. at 765-66; Furness, 35 B.R. at 1011-13; In re Talladega Steaks, Inc., 50 B.R. 42, 44 (Bankr.N.D.Ala.1985). Those courts have recognized that if a petitioner has no need to rehabilitate or reorganize, its petition cannot serve the rehabilitative purpose for which Chapter 11 was designed. See In re" }, { "docid": "14779361", "title": "", "text": "B.R. 491, 494 (Bankr.S.D.N.Y.1980). 87 B.R. at 870. Although other courts have reached different conclusions, this court believes the automatic stay applies in this case. This court recognizes the competing policy concerns of debtor protection and preserving property rights of creditors. Debtor rehabilitation is one major policy goal under the Bankruptcy Code. In Chapter 13 cases, the automatic stay allows a debtor the time to propose, confirm and consummate a confirmed plan involving property of the estate. If a creditor has cause to seek modification of the automatic stay, the creditor may file a motion for prompt determination by the court. The court is under strict time constraints to hear and decide motions to modify the automatic stay. 11 U.S.C. § 362(e). The United States Supreme Court has recently stated “the ‘interest in property’ protected by § 362(d)(1) does not include a secured party’s right to immediate foreclosure.” United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988) (emphasis added). When a Chapter 13 case has been confirmed and a debtor retains a possessory right in real property, absent exceptional circumstances, a secured party or lessor will incur very little harm during the short delay until the bankruptcy court hears a motion for relief from stay. The majority of the cases which hold the automatic stay does not apply in Chapter 13 cases postconfirmation involve alimony, maintenance and support issues. Those types of obligations are nondischargeable in a Chapter 13 case. 11 U.S.C. § 1328(a)(2). Although the policy is not always articulated, this court believes some cases hold the stay is inapplicable because of a compelling public policy consideration; an ex-spouse, a minor child or other person who is entitled to support for his or her daily needs should be able to take prompt action against property in order to survive. The policy considerations existing in the alimony, maintenance and support cases are not present in this case. When a debtor is a wage earner, the continued further occupancy of his residential premises may be essential to" }, { "docid": "10168480", "title": "", "text": "the adequate protection provisions leaves the secured creditor unable to enforce its rights. Congress clearly intended to provide a wide range of remedies for the secured creditors of a debtor that does not have a reasonable possibility of reorganizing or that unreasonably delays in its efforts to reorganize. It remains for the courts to effectuate those remedies. III. The creditor-protection provisions of the Bankruptcy Code reviewed in Part II of this opinion can be made meaningful only by bankruptcy judges who are equally sensitive to the need for creditor protection as to the need for protecting the debtor’s right to reorganize. A principal goal of the reorganization provisions of the Bankruptcy Code is to benefit the creditors of the Chapter 11 debtor by preserving going-concern values and thereby enhancing the amounts recovered by all creditors. The secured creditor benefits from a successful reorganization because its secured claim is valued on a going-concern basis in connection with a plan of reorganization, and the secured creditor is not compelled to liquidate its collateral at forced-sale prices. However, when there is no reasonable likelihood that the statutory objective of reorganization can be realized or when the debtor unreasonably delays, then the automatic stay and other statutory provisions designed to accomplish the reorganization objective become destructive of the legitimate rights and interests of creditors, the intended beneficiaries. In that situation it is incumbent upon the bankruptcy judge to effectuate the provisions of the Bankruptcy Code for the protection of creditors lest the judge keep the Code’s word of promise to the ear of creditors and break it to their hope. The bankruptcy judge must meet head-on his obligation to decide, fairly and impartially, the hard questions. Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and if the goals of reorganizability on the one hand, and creditor protection, on the other, are to be achieved. In almost all cases the key to avoiding excessive administrative costs, which are borne by the unsecured creditors, as well as excessive interest expense, which is borne by all" }, { "docid": "18550398", "title": "", "text": "the single valuation approach. Reddington/Sunarrow, like the present case, was a single-asset Chapter 11 real estate ease, involving an apartment complex. The real property, at the time of filing of the case, was worth $4.6 million. It served as security for a claim, as of the time of filing, of $5.4 million. The secured creditor also had an assignment of rents, and, during the course of the bankruptcy, the property generated net rents of $600,000 (the debtor having been allowed to use the remainder of the rents, presumably to maintain the property). The underlying property did not decline in value during the bankruptcy. The issue in the case was how the net rents should be treated. The court addressed the issue in two steps. First, it concluded that the interest of a secured creditor should be established at the date of filing, relying particularly on the Court of Appeal’s decision in the Timbers case: When Timbers was before the Fifth Circuit, the court’s view was that Congress intended that a secured creditor be adequately protected only for the fixed amount of its allowed secured claim, an amount that is strictly limited to the value of the property securing the debt. In re Timbers of Inwood Forest Assoc., Ltd., 793 F.2d 1380, 1386-87, n. 7 (5th Cir.1986) [aff'd sub nom. United Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)]. The court decided that the amount of the allowed secured claim should be determined as of the date of filing the petition. Id. at 1387. 119 B.R. at 813. Next, with the protectible interest of the secured creditor thus fixed at $4.6 million, and with no decline in the value of the underlying property, the court found no need to make payments to the secured creditor during the course of the bankruptcy, either for adequate protection or for postpe-tition interest under Section 506(b). “Whether the allegation is that the payments are adequate protection payments, interest payments, or lost opportunity costs, the Supreme Court in Timbers made it clear that" }, { "docid": "8316745", "title": "", "text": "§ 362(a)(8) (1982). . This is not to say that at some later date the debtors may change their position. At such time this Court would possess jurisdiction to determine the 1982 Tax Case. . In re Timbers of Inwood Forest Associates, LTD., 808 F.2d 363, 373 (5th Cir.1987), aff'd on other grounds, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (\"Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and the goals of reorganizability on the one hand, and creditor protection, on the other, are to be achieved.”). .While the issue presently before us concerns a clash between the bankruptcy court’s jurisdiction and that of the United States Tax Court, it should be remembered that the analysis infra applies equally to a clash with any court of appropriate jurisdiction over tax matters. . See generally Bostwick v. United States, 521 F.2d 741, 744 (8th Cir.1975); In re Original Wild West Foods, Inc., 45 B.R. 202 (Bankr.W.D.Tex. 1984). . In re Diez, 45 B.R. 137, 139 (Bankr.S.D.Fla. 1984) (Bankruptcy Court abstained from determination of tax claim \"where no bankruptcy purpose is served which would outweigh the importance of uniformity of assessment.”). .Because we cannot predict the potential differences in each case, the factors we analyze are by no means exhaustive or exclusive. . In fact, the record reveals the Debtors and Mr. and Mrs. Lamar Hunt each filed virtually identical written protest letters on March 9, 1987, in response to the IRS’s February 23, 1987 proposed adjustment letters. Moreover, the Debtors’ and Mr. and Mrs. Lamar Hunt’s Tax Court Petitions for the 1982 Tax Court Case are virtually identical, with the exception of numerical differences. . We would note that under the proper facts the potential whipsaw problem could be avoided by the bankruptcy court’s determination of both a debtor’s and non-debtor’s tax liability. While the parties did not discuss the possibility of having this court decide Mr. and Mrs. Lamar Hunt’s tax liability, our jurisdiction to decide the tax liabilities of non-debtor entities remains questionable. See United" }, { "docid": "2748352", "title": "", "text": "is not possible. Fossum v. Federal Land Bank (In re Fossum), 764 F.2d 520, 521 (8th Cir.1985). See also Michigan National Bank v. Charfoos (In re Charfoos), 979 F.2d 390, 395 (6th Cir.1992) (quoting Toibb v. Radloff, 501 U.S. 157, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991)) (“it is recognized that generally ‘bankruptcy courts [have] substantial discretion to dismiss ... [where] the debtor files an untenable plan of reorganization.’ ”); In re Brown, 951 F.2d 564, 572 (3d Cir.1991) (quoting United Sav. Assoc. v. Timbers of Inwood Forest, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)) (discussing § 1112(b) and stating that “there must be ‘a reasonable possibility of a successful reorganization within a reasonable time.’ ”); In re Anderson, 52 B.R. 159, 162-63 (Bankr.D.N.D.1985) (failure of the debtor to meet the confirmation prerequisite of 11 U.S.C. § 1129(a)(11) is cause for dismissal under § 1112(b)). If the Chapter 11 case cannot achieve a reorganization within the statutory requirements of the Code, then there is no point in expending estate assets on administrative expenses, or delaying creditors in the exercise of their nonbankruptcy law rights. In re Brown, 951 F.2d at 572. See also In re L.B.G. Properties, 72 B.R. 65, 68 (Bankr.S.D.Fla.1987) (Chapter 11 does not provide an unlimited opportunity to seek a successful reorganization). Although this case is only pending for several months, it follows on the heels of the prior case filed almost two years ago. Ram wants to maintain this Chapter 11 case (and its concomitant automatic stay) in order to confirm a 100% plan that would be funded from the refinance of the Debtor’s residence. While it focused its defense to the Old Gold Motion on Old Gold’s refusal to accept the amount of the claim as allowed against Gallagher, it has done nothing in two bankruptcy cases to liquidate that claim. Indeed as of today and even though Ram’s counsel has been making this argument for some time, the question of how much Ram owes Old Gold has not been presented to this or any court. Nor does the Disclosure Statement" }, { "docid": "10242933", "title": "", "text": "salary of $9,500 per month for personal living expenses. If the debtor’s plan provides that the debtor will use his substantial income to make heavy mortgage payments on a lavish house, to pay for luxury cars, and to generally support an extravagant lifestyle, the plan may not meet the confirmation requirements of 11 U.S.C. § 1129(a). There is no “disposable income” test in chapter 11 as there is in chapter 12 (11 U.S.C. § 1225(b)) and chapter 13 (11 U.S.C. § 1325(b)), but a plan must be proposed in good faith to be confirmable. 11 U.S.C. § 1129(a)(3). Ability to pay is certainly one factor that this court looks to when determining if a chapter 13 plan has been proposed in good faith (11 U.S.C. § 1325(a)(3)), and that factor would certainly be relevant in a consumer chapter 11 case such as the one now before the court. See Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982) (chapter 13). SO ORDERED. . The 120 day period coincides with the 120 period of 11 U.S.C. § 1121(b) during which only the debtor in possession may file a plan. The time period within which the debtor is required by court order to file a plan is, however, entirely separate from the exclusive period. . Grundy National Bank v. Shortt, 80 B.R. 802 (W.D.Va.1987); In re Moog, 774 F.2d 1073 (11th Cir.1985); but cf. In re Wamsganz, 804 F.2d 503 (8th Cir.1986) (holding that persons not engaged in business may not seek relief under chapter 11). . The court also follows this practice with respect to small uncomplicated corporations. Small, Chapter 11(a)—Accelerated Reorganization, 8 Norton Bankruptcy Law Adviser 3 (August, 1987). .“Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and if the goals of reorga-nizability on the one hand, and creditor protection, on the other, are to be achieved.” In re Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363, 373 (5th Cir.1987), aff’d, United Savings Association v. Timbers of Inwood Forest, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740" }, { "docid": "14783689", "title": "", "text": "11 reorganization plan or, if that is not feasible, that it be dismissed or converted to Chapter 7 in order not to risk prejudice to creditors while it languishes here. United States Association of Texas v. Timbers of Inwood Forest Assoc., Ltd. (In re Timbers of Inwood Forest Associates, Ltd.), 808 F:2d 863, 371-72 (5th Cir.1987), aff’d 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). The Debtor shows some potential for a successful reorganization. If the defendants owe it substantial sums, it would be tragic that reorganization be frustrated by court delay. If the debts are not owed, the Debtor should learn this soon so as to exclude them in its reorganizational planning. Bankruptcy courts are accustomed to timing the disposition of adversary proceedings with these considerations in mind. We will not dismiss these core proceedings, or abstain from hearing them under 28 U.S.C. § 1334(c)(1) assuming we have abstention perogatives under that statute. Few cases are actually tried; most are settled and some are resolved by disposi-tive rulings prior to trial. We will retain the proceedings for speedy pretrials and interlocutory rulings, and for proposed rulings upon any dispositive motions. A bankruptcy judge may adjudicate interlocutory matters under § 157(c)(1); the statute preserves only “final” orders for entry by the district judge, and its procedure would be unworkable if the district judge had to adjudicate interlocutory matters. Vantage Dev. & Management Corp. v. X-Alpha Int’l, Ltd., (In re Kennedy), 48 B.R. 621 (Bankr.D.Ariz.1985); Lesser v. A-Z Assoc. (In re Lion Capital Group), 46 B.R. 850, 853-54 (Bankr.S.D.N.Y.1985). We will transfer the proceedings to a district judge for trial when and if they are in a trial posture. See Mohawk Industr. Inc. v. Robinson Industr. Inc., supra. This procedure will discharge our obligation to manage the Chapter 11 case by assuring the availability of an early trial; it will also reduce to a minimum the burden placed upon the district judge. The Court reserves the right to transfer the proceedings to the district judge before they are ready for trial if considerations of court calendars indicate that an" }, { "docid": "8316744", "title": "", "text": "a trial before the Tax Court in July 1989. The United States may begin all discovery and preparation, file pre-hearing motions, etc. Likewise, we shall monitor the parties between now and the beginning of trial to ensure that meaningful progress occurs towards prompt trial of this case. If this Court discovers that either of the parties are delaying the resolution of these cases without good cause, it will promptly resolve the dispute by conducting a trial as early as October 1, 1989. In the event that the parties progress toward a trial before the Tax Court in a meaningful manner, and upon the parties’ announcement of ready for trial before the Tax Court, the automatic stay shall be modified to permit trial and appeal to a final conclusion so as to liquidate the claim of the United States. . The Court defers ruling on the determination of Debtors’ tax liabilities for the remaining tax years until the parties have an opportunity to develop the issues and determine proposed deficiency or refund amounts. . 11 U.S.C. § 362(a)(8) (1982). . This is not to say that at some later date the debtors may change their position. At such time this Court would possess jurisdiction to determine the 1982 Tax Case. . In re Timbers of Inwood Forest Associates, LTD., 808 F.2d 363, 373 (5th Cir.1987), aff'd on other grounds, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (\"Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and the goals of reorganizability on the one hand, and creditor protection, on the other, are to be achieved.”). .While the issue presently before us concerns a clash between the bankruptcy court’s jurisdiction and that of the United States Tax Court, it should be remembered that the analysis infra applies equally to a clash with any court of appropriate jurisdiction over tax matters. . See generally Bostwick v. United States, 521 F.2d 741, 744 (8th Cir.1975); In re Original Wild West Foods, Inc., 45 B.R. 202 (Bankr.W.D.Tex. 1984). . In re Diez, 45" }, { "docid": "6509950", "title": "", "text": "on the Building rents and Flagler’s continued use of such cash collateral to make the very post-petition payments at issue here, that sets this case apart from the authorities cited by Flagler, and is of significant importance to the Court’s determination that Foremost’s secured claim should not be reduced. In this case, the post-petition monthly payments were derived from the excess rents and paid as adequate protection against Flagler’s erosion of the value of Foremost’s secured claim; a claim which extends to the rents generated by the Building during the Chapter 11 constituting Foremost’s cash collateral. This entitlement to the excess rents is entirely consistent with Sections 361(1), 363(e), and 552(b) of the Bankruptcy Code as well as the Supreme Court’s statement in Timbers that adequate protection would still be available to the undersecured creditor whose collateral was declining in value while the stay is in effect. It was explicitly agreed at the June 1, 1988 hearing that the net operating income or “excess rent” from the Building would be paid over to Foremost as adequate protection. Flagler cannot contend that its use of cash collateral did not erode the value of Foremost’s secured claim. Consistent with Sections 502(b) and 552(b) of the Bankruptcy Code, Foremost’s secured claim consists of its subordinate interest in the value of the Building as of the commencement of the case, plus the rents as cash collateral generated thereby during the Chapter 11. Cf. In re Pine Lake Village Apartment Co., 19 B.R. 819, 826 (Bankr.S.D.N.Y.1982) (recognizing that the value of a secured claim which also encumbers rents was increasing by the unspent rental income accumulating in accounts); and In re Timbers of Inwood Forests Associates, Ltd., 793 F.2d 1380, 1412 n. 57 (5th Cir.1986), aff'd, United Savings Association of Texas v. Timbers of Inwood Forests Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (collecting supporting cases, including Pine Lake, expressing the view that an undersecured creditor is “entitled only to protection against a decline in the value of its collateral through use, decay or depreciation”). The post-petition payments made by" }, { "docid": "4466972", "title": "", "text": "the final process of legislation, Congress inadvertently placed Sections 1112(d) and 1307(d) amendments within Subtitle B. The misplacement in Subtitle B was important because it brought the amendment of these sections within the restrictive language of Section 302(c)(1) regarding the effective date and, thus, in apparent conflict with Congressional leaders’ remarks and the Joint Explanatory Statement. Judge Kressel, in his order issued in In re Waetjen, BKY 4-86-3335 (Bkrtcy.D.Minn. Nov. 26, 1986), alluded to the “hectic and even chaotic conditions of the last days of the 99th Congress.” In divining legislative intent surrounding the passage of § 203, it seems apparent that Congress was not satisfied with the restrictions imposed upon bankruptcy courts by the Gusam holding which limited their ability to: control their dockets, prevent abuse, and insure that reorganization cases do not languish to the detriment of legitimate creditor interests. To some extent, Congress’ passage of § 203 presaged the lecture recently given to bankruptcy judges by the Fifth Circuit Court of Appeals: Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and if the goals of reorganizability on the one hand, and creditor protection, on the other, are to be achieved. In almost all cases the key to avoiding excessive administrative costs, which are borne by the unsecured creditors, as well as excessive interest expense, which is borne by all creditors, is early and stringent judicial management of the case. We recognize that Congress, in 1978, amended the bankruptcy laws with the intention of removing bankruptcy judges from the administration of the debtor’s estate. The purpose of this amendment was to insure the impartiality of the bankrupta-cy judge. We do not believe, however, that Congress thereby intended to relieve the bankruptcy judge of the responsibility of managing the cases before him in such a way as to promote the objective and goals of the Bankruptcy Code. Our conclusion in this respect is strengthened by the fact that the bankruptcy court is an adjunct of the district court. District court judges function under Fed.R.Civ.P. 16 with full power" }, { "docid": "6460313", "title": "", "text": "that the trustee has wholly failed timely to file any section 547 or 548 action within the time period granted by the statutes of limitation. Further, offered at this point or hereafter, the offer runs afoul of the rule that, after a hearing is concluded, additional evidence may be offered on a timely showing that such evidence has been newly discovered and in the exercise of due diligence would not have been discovered in time to be adduced at trial. No such timely showing has been made in this case. II There is a separate and independent reason why this court has determined that this prior order of July 5, 1985, should now be enforced. It remains the responsibility of the bankruptcy court to see that estates are administered properly and for the benefit of creditors rather than for the principal benefit of the trustee and his attorneys. “Clearly the purpose of the Bankruptcy Act was to benefit creditors and debtors, not trustees.” In re Kokoszka, 479 F.2d 990, 995, 996 (7th Cir.1973), affirmed sub nom. Kokoszka v. Bedford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). See also In re Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363, 373, 374 (5th Cir.1987), affirmed, — U.S.-, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), to the following effect: “In almost all cases the key to avoiding excessive administrative costs, which are borne by the unsecured creditors, as well as excessive interest expense, which is borne by all creditors, is early and stringent judicial management of the case. We recognize that Congress, in 1978, amended the bankruptcy laws with the intention of removing bankruptcy judges from the administration of the debtor’s estate. The purpose of this amendment was to insure the impartiality of the bankruptcy judge. We do not believe, however, that Congress thereby intended to relieve the bankruptcy judge of the responsibility of managing the cases before him in such a way as to promote the objectives and goals of the Bankruptcy Code. Our conclusion in this respect is strengthened by the fact that the bankruptcy court is" }, { "docid": "10220199", "title": "", "text": "within a reasonable time’. [In re Timbers of Inwood Forest Associates, Ltd.] 808 F.2d [36] at 370-371 [5th Cir.1987] and NN 12-13 and cases cited therein. The cases are numerous in which § 362(d)(2) relief has been provided within less than a year from the filing of the bankruptcy petitions. (Cites omitted). And while the bankruptcy courts demand less detailed showings during the four months in which the debtor is given the exclusive right to put together a plan, see 11 U.S.C. §§ 1121(b), (c)(2), even within that period lack of any realistic prospect of effective reorganization will require § 362(d)(2) relief.” (Emphasis in original). The precise issue decided by Timbers, supra, has been discussed in In re National Real Estate Ltd. Partnership 11, 87 B.R. 986, 990 (Bankr.E.D.Wis.1988), where the Court held: “The key word in analyzing this second element under § 362(d)(2) is ‘effective’. Most courts have adopted what is known as the feasibility test. In re Cablehouse, Ltd., 68 B.R. 309 (Bankr.S.D.Ohio 1986); In re Craghead, 57 B.R. 366 (W.D.Mo. 1985); In re Anderson Oaks, 77 B.R. [108] at 108 [Bankr.W.D.Tex.1987]; Matter of Terra Mar Assoc., 3 B.R. 462 (Bankr.D.Conn.1980); In re Boca Development Assoc., 21 B.R. 624 (Bankr.S.D. N.Y.1982). Under this test, the debtor must show that there is a reasonable probability of a successful reorganization within a reasonable time. This proposition was recently affirmed by Justice Scalia in United Savings Association of Texas v. Timbers of Inwood Forest Associates Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Justice Scalia declared that there are situations early in the chapter 11 proceedings—even during the initial 4-month period within which the debtor has the exclusive right to submit its plan—where relief from stay under § 362(d)(2) is appropriate. Each case must be viewed on the basis of its own particular facts, and there must be a balancing of the interest of the debtor with the interest of the secured creditor in its collateral. See, In re Diplomat Electronics Corp., 82 B.R. 688 (Bankr.S. D.N.Y.1988), in which the court, guided by Timbers, granted the creditor’s motion" }, { "docid": "13686132", "title": "", "text": "equitable considerations in a bankruptcy proceeding is to guide the division of a pie that is too small to allow each creditor to get the slice for which he originally contracted. See also Guerin v. Weil, Gotschal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.) (“Although it has been broadly stated that a bankruptcy court is a court of equity, the exercise of its equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act.”) (citation omitted). Declaring that Wolff has a right to fees from the non-Lisk creditors is not “necessary or appropriate” to carrying out any Code provision or to efficiently administering the estate. Consequently, there was no reason for the bankruptcy court to invoke its equitable powers in his behalf. Affirmed. . The date when the case was filed is significant because Bankruptcy Rule 1019, which governs the status of claims in a case converted from Chapter 11 to Chapter 7, was amended as of August 1, 1987. The amendment changed the Rule to require Chapter 11 creditors to file new claims when the case moves to Chapter 7. Before the amendment, however, the Buie did not require such refiling. Fesco Plastics, 908 F.2d at 241-243. . Section 502(b)(2) provides: § 502 Allowance of claims or interests (b) Except as provided in [certain subsections], if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that— (2) such claim is for unmatured interest[.] Courts routinely cite this section as embodying the general rule against post-petition interest. United Savings Ass'n v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 373, 108 S.Ct. 626, 631-32, 98 L.Ed.2d 740 (1988); In re Hanna, 872 F.2d 829, 831 (8th Cir.1989). . Section 726 determines the order of distribution of the debtor’s estate. Under subsection (a)(5), any money remaining after all other claims have been" }, { "docid": "1162149", "title": "", "text": "29, 1987. Debtors were present at the hearing arid were represented by counsel. In the Court’s opinion, Debtors understood the nature of the motions and presented a competent and informed defense. Having determined that the requirements of due process have been met, the Court will now address the merits of the motions. When a bankruptcy petition is filed, section 362 of the Bankruptcy Code imposes an automatic stay on any actions against the debtor or property of the estate. The purpose of the automatic stay is to provide the debtor with a “breathing spell” during which he can develop a plan of repayment or reorganization free from financial pressures. The automatic stay also serves to protect creditors of the debt- or since it helps to promote an orderly distribution of the property of the bankruptcy estate. Thus, the filing of a bankruptcy petition will frequently cause delay in other judicial proceedings. Filing a bankruptcy petition in an attempt to delay creditors is not necessarily improper if the debtor also intends to make a legitimate effort at reorganization. Filing a bankruptcy petition simply to forestall and delay a state court action, with no intention to effectuate a legitimate reorganization, constitutes an abuse of the Bankruptcy Code. See In re Indian Rocks Landscaping of Indian Rocks Beach, Inc., 77 B.R. 909 (Bankr.M.D.Fla.1987). In filing a Chapter 11 bankruptcy petition, good faith requires that the debtor have a reasonable expectation of reorganization. In re French Gardens, Ltd., 58 B.R. 959, 964 (Bankr.S.D.Tex.1986). Cf. United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., — U.S. -, 108 S.Ct. 626, 632, 98 L.Ed.2d 740 (1988) (when an unsecured creditor files a motion for relief from the automatic stay, the debtor must show that property is “essential for an effective reorganization that is in prospect ” to prevail (emphasis in original)). Once a creditor has established a prima facie case of a bad faith filing, the burden shifts to the debtor to show a legitimate purpose for the filing of the bankruptcy petition, namely, to reorganize. See In re Eighty South Lake, Inc., 63" }, { "docid": "14783688", "title": "", "text": "of a verdict through a second jury trial held at the discretion of a judge, or even by the potential for such modification. In summary, a second jury trial is unlikely but is possible. The potential for one poses such doubts under the Seventh Amendment and such potential for waste ful duplication of the judicial process, beyond the procedure required by § 157(c)(1), that a jury trial in this Court should be avoided. IV. DISPOSITION OF THESE ADVERSARY PROCEEDINGS Debtor’s counsel, who of course asserts that the defendants owe the full amounts sought, informs the Court that these causes of action are among the largest of the Debtor’s accounts receivable, and that the Debtor needs the funds for its Chapter 11 reorganizational efforts. Counsel argues that those efforts will be frustrated if the present proceedings are dismissed, asserting that it will take years in the state courts to bring them to a conclusion. The court has an obligation to manage this Chapter 11 case and see that it proceeds rather quickly to a confirmed Chapter 11 reorganization plan or, if that is not feasible, that it be dismissed or converted to Chapter 7 in order not to risk prejudice to creditors while it languishes here. United States Association of Texas v. Timbers of Inwood Forest Assoc., Ltd. (In re Timbers of Inwood Forest Associates, Ltd.), 808 F:2d 863, 371-72 (5th Cir.1987), aff’d 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). The Debtor shows some potential for a successful reorganization. If the defendants owe it substantial sums, it would be tragic that reorganization be frustrated by court delay. If the debts are not owed, the Debtor should learn this soon so as to exclude them in its reorganizational planning. Bankruptcy courts are accustomed to timing the disposition of adversary proceedings with these considerations in mind. We will not dismiss these core proceedings, or abstain from hearing them under 28 U.S.C. § 1334(c)(1) assuming we have abstention perogatives under that statute. Few cases are actually tried; most are settled and some are resolved by disposi-tive rulings prior to trial. We" }, { "docid": "10242934", "title": "", "text": "1121(b) during which only the debtor in possession may file a plan. The time period within which the debtor is required by court order to file a plan is, however, entirely separate from the exclusive period. . Grundy National Bank v. Shortt, 80 B.R. 802 (W.D.Va.1987); In re Moog, 774 F.2d 1073 (11th Cir.1985); but cf. In re Wamsganz, 804 F.2d 503 (8th Cir.1986) (holding that persons not engaged in business may not seek relief under chapter 11). . The court also follows this practice with respect to small uncomplicated corporations. Small, Chapter 11(a)—Accelerated Reorganization, 8 Norton Bankruptcy Law Adviser 3 (August, 1987). .“Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and if the goals of reorga-nizability on the one hand, and creditor protection, on the other, are to be achieved.” In re Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363, 373 (5th Cir.1987), aff’d, United Savings Association v. Timbers of Inwood Forest, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Although this language is not repeated in the Supreme Court’s decision affirming the court of appeals’ decision, the sentiments expressed by the Fifth Circuit reflect this court's views with respect to chapter 11 cases." }, { "docid": "10168481", "title": "", "text": "when there is no reasonable likelihood that the statutory objective of reorganization can be realized or when the debtor unreasonably delays, then the automatic stay and other statutory provisions designed to accomplish the reorganization objective become destructive of the legitimate rights and interests of creditors, the intended beneficiaries. In that situation it is incumbent upon the bankruptcy judge to effectuate the provisions of the Bankruptcy Code for the protection of creditors lest the judge keep the Code’s word of promise to the ear of creditors and break it to their hope. The bankruptcy judge must meet head-on his obligation to decide, fairly and impartially, the hard questions. Early and ongoing judicial management of Chapter 11 cases is essential if the Chapter 11 process is to survive and if the goals of reorganizability on the one hand, and creditor protection, on the other, are to be achieved. In almost all cases the key to avoiding excessive administrative costs, which are borne by the unsecured creditors, as well as excessive interest expense, which is borne by all creditors, is early and stringent judicial management of the case. We recognize that Congress, in 1978, amended the bankruptcy laws with the intention of removing bankruptcy judges from the administration of the debt- or’s estate. The purpose of this amendment was to insure the impartiality of the bankruptcy judge. We do not believe, however, that Congress thereby intended to relieve the bankruptcy judge of the responsibility of managing the cases before him in such a way as to promote the objectives and goals of the Bankruptcy Code. Our conclusion in this respect is strengthened by the fact that the bankruptcy court is an adjunct of the district court. District court judges function under Fed.R.Civ.P. 16 with full power and responsibility to manage their cases and with the directive to move their cases in such a way as to promote fairness to the parties and judicial economy. These responsibilities are not incompatible with their judicial function; indeed, they are at the core of it. We recognize that the line between administration of the debtor’s estate that" }, { "docid": "4466973", "title": "", "text": "essential if the Chapter 11 process is to survive and if the goals of reorganizability on the one hand, and creditor protection, on the other, are to be achieved. In almost all cases the key to avoiding excessive administrative costs, which are borne by the unsecured creditors, as well as excessive interest expense, which is borne by all creditors, is early and stringent judicial management of the case. We recognize that Congress, in 1978, amended the bankruptcy laws with the intention of removing bankruptcy judges from the administration of the debtor’s estate. The purpose of this amendment was to insure the impartiality of the bankrupta-cy judge. We do not believe, however, that Congress thereby intended to relieve the bankruptcy judge of the responsibility of managing the cases before him in such a way as to promote the objective and goals of the Bankruptcy Code. Our conclusion in this respect is strengthened by the fact that the bankruptcy court is an adjunct of the district court. District court judges function under Fed.R.Civ.P. 16 with full power and responsibility to manage their cases and with the directive to move their cases in such a way as to promote fairness to the parties and judicial economy. These responsibilities are not incompatible with their judicial function; indeed, they are at the core of it. We recognize that the line between administration of the debtor’s estate that would jeopardize the bankruptcy judge’s impartiality and effective case management may sometimes be a difficult one to draw. Nevertheless, we think that each bankruptcy judge is called upon to manage the cases in front of him, fairly and impartially, in such a way as to promote their orderly and prompt disposition. The difficulty in ascertaining where the line is to be drawn cannot be an excuse for a judge’s abdication of his responsibility to function as a judge. In re Timbers of Inwood Forest Associates Ltd., 808 F.2d 363, 373-74 (5th Cir.1987) (en banc) (footnote omitted). In asserting its interpretation of the 1986 Act, the debtor offers no explanation why Congress sought to delay the amendment to §" } ]

[ { "docid": "14445334", "title": "", "text": "A. Standard of Review This Court reviews questions of law de novo. Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989); Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 308 (6th Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988). Although Honaker would have us apply an abuse of discretion standard because such is the standard applied to review a district court’s refusal to dismiss an indictment, the true issue here is the interpretation and application of § 922(j). Construction of a statute is a question of law, and thus receives de novo review. B. Interpretation of § 922(j) “In determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.” Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1555, 95 L.Ed.2d 39 (1987)). The object and policy of a statute, of course,’ are reflected in the legislative history of that statute. If, after reference to the language, structure and legislative history of a statute, the intended scope of the statute remains ambiguous, the rule of lenity will apply. Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990). In construing § 922(j), it is important to compare its present form with how it previously read. Formerly, § 922(j) stated: It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any stolen firearm ..., or to pledge or accept as security for a loan any stolen firearm ..., which is moving as, which is part of, or which constitutes interstate or foreign commerce, knowing or having reasonable cause to believe that the firearm ... was stolen. This language gave rise to two requirements: First, that defendants receive and conceal the firearms while the" } ]

[ { "docid": "22128538", "title": "", "text": "had run, Norwest Bank Minnesota, N.A., Minneapolis Collection, Reliance Recoveries and John’s Hillcrest Pharmacy filed proofs of claim. After both the 90-day period and the additional 30-day period had run, proofs of claim were filed on behalf of North Memorial Medical Center and Student Loan Servicing Center by the Tiedens. The trustee objected to allowance of all claims on the basis of their late filing. ISSUE The issue before us is whether a claim filed in a Chapter 13 case after the 90-day deadline set by Rule 3002(c) of the Federal Rules of Bankruptcy Procedure should be disallowed? DISCUSSION The resolution of this question requires an examination of several provisions of the Bankruptcy Code and Rules. Although “canons of construction are no more than rules of thumb that help courts determine the meaning of legislation,” Connecticut Nat’l Bank v. Germain, — U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992), the examination commences with the language of the statutes itself. Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 557, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990) (“the fundamental canon [of] statutory interpretation begins with the language of the statute itself.”); U.S. v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). “The sole function of the court is to enforce [the statute] according to its terms.” Id. 489 U.S. at 241, 109 S.Ct. at 1030 (citing Caminetti v. U.S., 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). Defining the terms of the statute, we must “presume that a legislature says in a statute what it means and means in a statute what it says there.” Germain, — U.S. at -, 112 S.Ct. at 1149. When the language before the court expresses Congress’ intent with precision, as it does here, reference to legislative history and to pre-Code practice is not necessary. Ron Pair Enter., Inc., 489 U.S. at 241, 109 S.Ct. at 1030. Section 501 is our starting point. Simply, section 501 tells us who can file a claim; it does not set out the" }, { "docid": "22112678", "title": "", "text": "(1990); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); Bethesda Hospital Assoc. v. Bowen, 485 U.S. 399, 403, 108 S.Ct. 1255, 1258, 99 L.Ed.2d 460 (1988). There of course may be those rare occasions under highly unusual circumstances when a court must conclude that the words used by the Congress did not capture the Congressional intent, at least as applied to the case before it. Such a case might be found when there is clearly expressed legislative intent that, on the given facts, a contrary result was intended, United States v. Turkette, 452 U.S. 576, 590, 101 S.Ct. 2524, 2532, 69 L.Ed.2d 246 (1981), or when a literal application of the statute produces a result so unlikely that Congress could not have intended it. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242-43, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989). In the case before us, the language of the statute is clear and its meaning is unambiguous. Absent extraordinary circumstances, our inquiry must end here. Ron Pair Enters., 489 U.S. at 241-42, 109 S.Ct. at 1030 (where statute’s language is plain, the court’s sole function is to enforce it according to its terms — the words express Congress’ intent and so reference to legislative history is unnecessary). Section 1391(c) applies to all of chapter 87 of title 28, and thus to § 1400(b), as expressed by the words “For purposes of venue under this chapter.” There can be no mistake about that. It is true that § 1391(c) is a general venue statute and that § 1400(b) is a specific one. But the general rule that a specific statute is not controlled or nullified by a general statute regardless of priority of enactment, absent a clear intention otherwise, does not govern the present situation. This is for two reasons. First, in this case the general statute, § 1391(c), expressly reads itself into the specific statute, § 1400(b). Second, § 1391(c) only operates to define a term in § 1400(b) — it neither alone governs patent venue nor" }, { "docid": "3057179", "title": "", "text": "Rouse v. Iowa, 110 F.Supp.2d 1117, 1124-25 (N.D.Iowa 2000); Hoffman v. Cargill, Inc., 59 F.Supp.2d 861, 871 n. 6 (N.D.Iowa 1999), rev’d on other grounds, 236 F.3d 458 (8th Cir.2001); Adler v. I & M Rail Link, L.L.C., 13 F.Supp.2d 912, 932 n. 10 (N.D.Iowa 1998); Rural Water Sys. # 1 v. City of Sioux Center, Iowa, 967 F.Supp. 1483, 1516 (N.D.Iowa 1997), aff'd, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Sicard v. City of Sioux City, 950 F.Supp. 1420, 1436 n. 7 (N.D.Iowa 1996). The Supreme Court describes this rule as the “one, cardinal canon before all others.” Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). \"[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Id. (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 42 L.Ed. 394 (1897); Oneale v. Thornton, 10 U.S. (6 Cranch) 53, 68, 3 L.Ed. 150 (1810)). When the language of the statute is plain, the inquiry also ends with the language of the statute, for in such instances “the sole function of the courts is to enforce [the statute] according to its terms.” Ron Pair, 489 U.S. at 241, 109 S.Ct. 1026 (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). This “plain language” or \"plain meaning\" rule of interpretation is not limited to the meaning of individual terms; rather, “[s]uch an inquiry requires examining the text of the statute as a whole by considering its context, 'object, and policy.' \" Harmon Indus., Inc. v. Browner, 191 F.3d 894, 899 (8th Cir.1999) (quoting Pelofsky v. Wallace, 102 F.3d 350, 353 (8th Cir.1996)). Thus, this court must \"effectuate the intent reflected in the language of the enactment and the legislative process,” Colorado v. Idarado Mining Co., 916 F.2d 1486, 1494 (10th Cir.1990), cert. denied, 499" }, { "docid": "22128539", "title": "", "text": "2126, 2130, 109 L.Ed.2d 588 (1990) (“the fundamental canon [of] statutory interpretation begins with the language of the statute itself.”); U.S. v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). “The sole function of the court is to enforce [the statute] according to its terms.” Id. 489 U.S. at 241, 109 S.Ct. at 1030 (citing Caminetti v. U.S., 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). Defining the terms of the statute, we must “presume that a legislature says in a statute what it means and means in a statute what it says there.” Germain, — U.S. at -, 112 S.Ct. at 1149. When the language before the court expresses Congress’ intent with precision, as it does here, reference to legislative history and to pre-Code practice is not necessary. Ron Pair Enter., Inc., 489 U.S. at 241, 109 S.Ct. at 1030. Section 501 is our starting point. Simply, section 501 tells us who can file a claim; it does not set out the time limits for filing. Legislative history tells us that “[t]he Rules of Bankruptcy Procedure will set the time limits, the form, and the procedure for filing, which will determine whether claims are timely or tardily filed.\" H.R.Rep. No. 595, 95th Cong., 1st Sess., 351 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 61 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5847, 6307 (emphasis added). Rule 3002 of the Federal Rules of Bankruptcy Procedure addresses these issues: (a) Necessity for Filing. An unsecured creditor or an equity security holder must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed,.... (c) Time for Filing. In a chapter 7 liquidation or chapter 13 individuals debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, ... Fed.R.Bankr.P. 3002. Read together, Rules 3002(a) and 3002(c) do not explicitly say but imply that filing with in the prescribed" }, { "docid": "3559881", "title": "", "text": "U.S. —, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991): The best evidence of [congressional] purpose is the statutory text adopted by both Houses of Congress and submitted to the President. Where that contains a phrase that is unambiguous — that has a clearly accepted meaning in both legislative and judicial practice — we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process. Id. Ill S.Ct. at 1147. For other recent cases of similar tenor, see Demarest v. Manspeaker, — U.S. —, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). But while the immediate statutory text is the “best evidence” of congressional intent, the Court has never held that it is the only such evidence. To the contrary, it has repeatedly said that congressional intent can be understood only in light of the context in which Congress enacted a statute and of the policies underlying its enactment. See, e.g., McCarthy v. Bronson, — U.S. —, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991) (Court relies on context to reject “the most natural reading” of a statutory phrase); Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.”); Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 530, 103 S.Ct. 897, 904, 74 L.Ed.2d 723 (1983) (“A proper interpretation of the section cannot ... ignore the larger context in which the entire statute was debated.”). Moving beyond § 101(b)(1)(C) itself, we find the caption of § 101(b), “Transition provisions for Medicare beneficiaries”, making clear that transition benefits are to be available for beneficiaries. Under the plaintiffs’ reading, subsection (C) creates an entitlement on the basis of mere recipient status on the controlling date (December 31, 1989). This" }, { "docid": "14362644", "title": "", "text": "not facially apply to suspend the bankruptcy law priority periods. It urges, however, that § 108(c)’s incorporation of § 6503’s suspension and extension illustrates á statutory purpose to preserve thé collectibility of certain tax claims and that, as a result, the suspension and extension must also apply to the priority periods. The district court agreed and reversed the bankruptcy court. IV. Discussion We review de novo the district court’s statutory interpretation. E.g., Careau Group v. Juan De La Cruz Farm, Workers Pension Fund (In re Careau Group), 923 F.2d 710, 711 (9th Cir.1991). To begin, we nóte that interpretation of the Bankruptcy Code “begins where all such inquiries must begin: with the language of the statute itself. United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (interpreting § 506(b)). E.g., Patterson v. Shumate, — U.S. —, —, 112 S.Ct. 2242, 2248, 119 L.Ed.2d 519 (1992) (interpreting § 541(c)); Toibb v. Radloff, — U.S. —, —, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991) (interpreting § 109(d)). Nevertheless, we realize that “in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’ ..., the intention of the drafters, rather than the strict language, controls.” Ron Pair, 489 U.S. at 242, 109 S.Ct. at 1031 (quoting Griffin v. Oceanic Contrac tors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). The case at bar is one such “rare case.” Because literal interpretation of § 108(e) would frustrate the Bankruptcy Code’s intricate scheme for the payment of tax claims, we do not adopt the debtors’ “plain language” admonitions. Section 507(a)(7) creates a “delicate balance” between priority and discharge of tax claims. In re Official Comm. of Unsecured Creditors of White Farm Equip. Co., 943 F.2d 752, 757 (7th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1292, 117 L.Ed.2d 115 (1992). The statute’s legislative history reveals that, as part of this balance, “Congress intended to give the government the benefit of certain time periods to pursue" }, { "docid": "19767961", "title": "", "text": "States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). “If the statutory language is unambiguous, in the absence of ‘a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’” Id.; see also United States v. Ron Pair Enters. Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (if the words are clear, the court must apply the statute by its terms unless to do so would lead to absurd results). I also look to the design of the statute as a whole and to its object and policy in determining the meaning of a statute. Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). The express purpose of the CPA is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition. CPA § 19.86.920. The CPA declares that “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful. CPA § 19.86.020. What constitutes “unfair or deceptive acts or practices” is not defined in the statute. “[Tjrade or commerce” is defined as “the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington.” CPA § 19.86.010(2). Any doubt that the CPA is inapplicable under the circumstances here is eliminated by examining the requirement that the unfair acts or practices occur in the conduct of any trade or business. The filing of a proof of claim cannot reasonably be construed as conduct occurring in the sale of assets or services or in commerce within the ordinary meaning of those terms. I thus conclude that the conduct debtor complains of here — the filing of a proof of claim — does not fall within the express language of the statute, reasonably construed. Courts in other jurisdictions with similar state law consumer protection statutes have so concluded. See Williams v. Asset" }, { "docid": "15580097", "title": "", "text": "the “legislative history” upon which the government relies in support of its position. Although we agree with the government that nothing in the legislative history of section 7702(f) suggests that the provision was enacted to excuse simple negligence of an employee or his or her agent, neither does it suggest that the provision only applies where an employee was confused as to where to file his or her appeal. We find nothing in the sparse legislative history of section 7702(f) which causes us to conclude that the application of the statute as written will produce a result “demonstrably at odds with the intentions of its drafters.” Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991) (citation omitted). Moreover, “where, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’ The language before us expresses Congress’ intent ... with sufficient precision so that reference to legislative history ... is hardly necessary.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (citation omitted). The government, citing 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), argues that we should accord “great deference” to the Board’s interpretation of the statutory provisions of section 7702(f). We disagree. The rule of deference enunciated in Chevron is limited to situations in which statutory language has “left a gap” or is ambiguous. Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 398 (Fed.Cir.1990). In section 7702(f), Congress left no gap and its intent is unambiguously manifested by clear language. Accordingly, we hold that under section 7702(f), the Board was obligated to treat Ms. Miller’s appeals as timely filed as a matter of law. CONCLUSION The Board erred in deciding that 5 U.S.C. § 7702(f) was not applicable to Ms. Miller’s mistaken filings with the Board. Its decision to dismiss Ms. Miller’s appeals was not in accordance with law and is therefore reversed. REVERSED. . As the Board noted in its" }, { "docid": "21549093", "title": "", "text": "the accused acquired or obtained lawfully by reason of some office, employment or position of trust which the accused held. To convert money or property to one’s own use means to apply, appropriate, or use such money or property with the expectation of benefit or profit to the accused. Appendix, at 244-45. Plaintiff argues that this instruction conflicts with the wording of the statute. Where there is a dispute over the meaning of a statute, inquiry begins with the plain language of the statute itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). The best evidence of Congress’ intent is the text of the statute. West Virginia Univ., Hosps., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1146, 113 L.Ed.2d 68 (1991). To make a determination about the meaning of a statute, the court must look not only to the particular statutory language, but to the design of the statute as a whole and its object and policy.” United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1155 (3d Cir.1991) (quoting Grandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990)); see also F.T.C. v. University Health, Inc., 938 F.2d 1206, 1216 (11th Cir.1991) (to interpret statutory section, it is best to refer to overall statutory scheme). Under the doctrine of lenity, any ambiguity concerning the ambit of criminal statutes should be resolved in favor of the defendant. Government of V.I. v. Knight, 989 F.2d 619, 633 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 556, 126 L.Ed.2d 457 (1993). The rule of lenity, however, “cannot dictate an implausible interpretation of the statute, nor one at odds with the generally accepted contemporary meaning of a term.” Taylor v. United States, 495 U.S. 575, 596, 110 S.Ct. 2143, 2157, 109 L.Ed.2d 607 (1990) (citation omitted). As such, the doctrine of lenity only applies where “reasonable doubt persists about a statute’s intended scope” even after review of the text, structure, legislative history, and policies" }, { "docid": "20325466", "title": "", "text": "\"The APA mandates not only that the agency make written findings describing the regulation's basis and purpose, 5 U.S.C. § 553(c), but it also mandates publication of and comment upon the proposed rule, id. § 553(b)(3), (c),” prior to the adoption of the agency’s interpretation. Garfinkel, 29 F.3d at 458. . The emphasis in Koray on whether the interpretive regulation provides the most natural and reasonable reading of a statute is in accord with the principal canon of statutory interpretation, the \"plain meaning” rule. \"The task of resolving the dispute over the meaning of [a statute] begins where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); United States ex rel. Harlan v. Bacon, 21 F.3d 209, 210 (8th Cir.1994) (\"When construing a statute, we are obliged to look first to the plain meaning of the words employed by the legislature,” and the court \"must give effect to the unambiguously expressed intent of Congress,” citing Chevron); United States v. Manthei, 979 F.2d 124, 126 (8th Cir. 1992) (“When interpreting statutory language, the court must first look to the plain meaning of the language,” citing North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102-03, 75 L.Ed.2d 77 (1983)). The Supreme Court describes this rule as the \"one, cardinal canon before all others.” Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Thus, \"courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Id. (citing, Ron Pair, 489 U.S. at 241-242, 109 S.Ct. at 1030-31; United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810)). When the language of the statute is plain, the inquiry also ends with the language" }, { "docid": "19767960", "title": "", "text": "Walls compels our holding that Debtor’s claim against B-Real under FDCPA is precluded by the Code. It was error for the bankruptcy court to deny B-Real’s motion to dismiss Debtor’s FDCPA claim. VII. CONCLUSION We REVERSE the bankruptcy court’s order denying B-Real’s motion to dismiss debtor’s complaint. We REMAND this matter to the bankruptcy court for entry of an order and further proceedings consistent with this Opinion. JURY, Bankruptcy Judge, Concurring. I agree that debtor’s complaint should have been dismissed and join in the majority’s conclusions on preemption of the CPA and preclusion of the FDCPA by the Code on these facts. However, because I believe that the act of filing a proof of claim is neither a violation of the CPA by definition nor a debt collection act under the FDCPA, I write separately. Also, I write to note an ambiguity in the breadth of the Ninth Circuit’s holding in Walls, 276 F.3d 502. I. The Scope of the CPA I start with the language of the statute itself in determining its scope. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). “If the statutory language is unambiguous, in the absence of ‘a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’” Id.; see also United States v. Ron Pair Enters. Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (if the words are clear, the court must apply the statute by its terms unless to do so would lead to absurd results). I also look to the design of the statute as a whole and to its object and policy in determining the meaning of a statute. Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). The express purpose of the CPA is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition. CPA § 19.86.920. The CPA declares that “[ujnfair methods of competition" }, { "docid": "918247", "title": "", "text": "489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); United States ex rel. Harlan v. Bacon, 21 F.3d 209, 210 (8th Cir.1994) (“When construing a statute, we are obliged to look first to the plain meaning of the words employed by the legislature,” and the court “must give effect to the unambiguously expressed intent of Congress,” citing Chevron); United States v. Manthei, 979 F.2d 124, 126 (8th Cir.1992) (“When interpreting statutory language, the court must first look to the plain meaning of the language,” citing North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983)). The Supreme Court describes this rule as the “one, cardinal canon before all others.” Connecticut Nat’l Bank v. Ger- main, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Thus, “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Id. (citing, Ron Pair, 489 U.S. at 241-242, 109 S.Ct. at 1030-31; United States v. Goldenberg, 168 U.S. 95, 102-103, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810)). When the language of the statute is plain, the inquiry also ends with the language of the statute, for in such instances “the sole function of the courts is to enforce [the statute] according to its terms.” Ron Pair, 489 U.S. at 241, 109 S.Ct. at 1030 (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)); Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1502 (8th Cir.1992) (plain meaning of a statute governs over ambiguous legislative history, citing Ron Pair Enterprises). The plain meaning of a statute is decisive, “except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair, 489 U.S. at 242, 109 S.Ct. at" }, { "docid": "14234248", "title": "", "text": "years,” Atlas Pile Driving Co., 886 F.2d at 994, and the \"short time” of a few months, Terry A. Lambert Plumbing, 934 F.2d at 981, and exceeds the seven-month period the Eighth Circuit Court of Appeals approved in Nabors, albeit contingent upon a showing that these acts constituted more than \"sporadic crime.\" Nabors, 45 F.3d at 241. . \"The task of resolving the dispute over the meaning of [a statute] begins where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984); United States ex rel. Harlan v. Bacon, 21 F.3d 209, 210 (8th Cir.1994) (“When construing a statute, we are obliged to look first to the plain meaning of the words employed by the legislature,\" and the court “must give effect to the unambiguously expressed intent of Congress,” citing Chevron); United States v. Manthei, 979 F.2d 124, 126 (8th Cir.1992) (\"When inteipreting statutory language, the court must first look to the plain meaning of the language,” citing North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983)). The Supreme Court describes this rule as the “one, cardinal canon before all others.” Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Thus, \"courts must presume that a legislature says in a statute what it means and means in a statute what it says there.\" Id. (citing, Ron Pair, 489 U.S. at 241-242, 109 S.Ct. at 1030; United States v. Goldenberg, 168 U.S. 95, 102-103, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810)). When the language of the statute is plain, the inquiry also ends with the language of the statute, for in such instances “the sole function of the courts is to enforce [the statute] according to its terms.” Ron Pair," }, { "docid": "15372083", "title": "", "text": "naturally the “language of the statute itself.” Consumer Product Safety Com. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); see also, United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (The starting point is the “precise wording chosen by Congress.”); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”) (internal citations omitted). As a general rule of statutory construction, where the terms of a statute are unambiguous, and where the “statutory scheme is coherent and consistent,” judicial inquiry is complete. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). Indeed, courts must presume that, when enacting a statute, the legislature says what it means and means what it says; for it is a fundamental principle that “... Congress legislates with knowledge of [the] basic rules of statutory construction ...” McNary v. Haitian Refugee Center, 498 U.S. 479, 495, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). Having ascertained the plain meaning of a statute, it then becomes the sole function of the judiciary “to enforce [the statute] according to its terms.” Ron Pair Enterprises, Inc., 489 U.S. at 241, 109 S.Ct. 1026 (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). As the Supreme Court recognized in Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), the meaning of a word cannot be determined in isolation. Thus, courts must draw from the language itself, the specific context of such language and the broader context of the entire statute. Robinson v. Shell Oil Company, 519 U.S. 337, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). Further, terms which are not defined within a statute “are given their" }, { "docid": "15670788", "title": "", "text": "523(a)(1)(C) but, instead, finding that the fact that the debtor had “engaged in more than ‘mere nonpayment’” meant that he had attempted to evade or defeat his taxes). But see In re Bruner, 55 F.3d 195, 200 (5th Cir.1995) (rejecting both holdings of Haas). Because we find that § 523(a)(1)(C) renders nondischargeable tax debts where the debtor willfully attempted to evade or defeat payment of taxes and because we find that the bankruptcy court did not err in finding that Griffith had willfully attempted to evade payment of his taxes, we affirm the district court’s affirmance of the bankruptcy court’s finding of nondischargeability. A. Statutory Interpretation Interpretation of a statute begins “with the language of the statute itself.” United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). As a general rule, if the language of the statute is plain, then our interpretative function ceases and we should “ ‘enforce [the statute] according to its terms.’” Id. (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). In interpreting the language of a statute, we generally give “the ‘words used’ their ‘ordinary meaning.’ ” Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962)). We also use interpretative tools, the “canons of construction,” which “are no more than rules of thumb that help courts determine the meaning of legislation.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Among these canons of construction are the principles “that Congress is presumed to be aware of judi cial. interpretations of a statute,” NLRB v. Bildisco & Bildisco, 465 U.S. 513, 524, 104 S.Ct. 1188, 1195, 79 L.Ed.2d 482 (1984), superseded by statute on other grounds, 11 U.S.C. § 1113 (1984), that “courts should disfavor interpretations of statutes that render language superfluous,” Connecticut Nat’l Bank, 503 U.S. at 253, 112 S.Ct. at 1149, and that “[w]e assume" }, { "docid": "18550017", "title": "", "text": "cure and reinstatement rights of debtors. All Alabama debtors, by the time of a foreclosure sale, have had ample opportunity to avail themselves of the protection of Chapter 13. McKinney at 336. A. In order to interpret Section 1322(c)(1) the Court must begin with the language of the statute itself. If the statutory scheme is “coherent and consistent, there is no need for a court to inquire beyond the plain language of the statute.” United States v. Ron Pair, 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). See also Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) (The court must give effect to the clear meaning of the statute as written); Connecticut National Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (When the words of a statute are unambiguous, the first canon of construction — that the court must presume that the legislature says what it means in the statute — also becomes the last canon of construction; judicial inquiry at that point is complete.); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917) (“[T]he meaning of a statute must, in the first instance be sought in the language in which the act is framed and if that is plain, ... the sole function of the courts is to enforce it according to its terms.”). See generally, Peter H. Carroll, III, Literalism: The United States Supreme Court’s Methodology For Statutory Construction in Bankruptcy Cases, 25 St. Mary’s L.J. 143, 148 (1993). The Court should not look beyond the language of the statute unless a literal application of the statute produces “a result demonstrably at odds with the intentions of its drafter.” Ron Pair, 489 U.S. at 242, 109 S.Ct. at 1031. Accord, Ardestani v. I.N.S., 502 U.S. 129, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (There is a strong presumption that the plain language of a statute expresses congressional intent and that presumption is rebutted only in rare and exceptional circumstances); In re Woodhaven, Ltd.," }, { "docid": "3532724", "title": "", "text": "no weight to legislative history that supported both parties); cf. Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991) (examining conflicting legislative history and concluding that it afforded little help is determining whether the Bankruptcy Code permitted an individual debtor to file for chapter 11 relief). Debtor’s principal problem is how to overcome the clear, unambiguous language of § 523(a)(16). The Supreme Court has repeatedly held that in interpreting statutes under the Bankruptcy Code, a court must begin with the statute itself. Pennsylvania Dep’t of Public Welfare v. Davenport, 495 U.S. 552, 557-58, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). When the statute is clear and unambiguous on its face, the court must apply the plain meaning of the statute and enforce it according to its terms. Patterson v. Shumate, 504 U.S. 753, 757, 112 S.Ct. 2242, 2246, 119 L.Ed.2d 519 (1992) (“the plain language of the Bankruptcy Code ... is our determinant”); Toibb v. Radloff, 501 U.S. 157, 160, 111 S.Ct. 2197, 2199, 115 L.Ed.2d 145 (1991) (“In our view, the plain language of the Bankruptcy Code disposes of the question before us.”); Ron Pair Enterprises, 489 U.S. at 241, 109 S.Ct. at 1030 (“[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute”). It is only when the statute is ambiguous that a court is permitted to look behind the words to attempt to derive the legislature’s intent. Patterson, 504 U.S. at 761, 112 S.Ct. at 2248 (“Although courts ‘appropriately may refer to a statute’s legislative histoiy to resolve statutory ambiguity,’ the clarity of the statutory language at issue in this case obviates the need for any such inquiry.”) (quoting Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991); Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S.Ct. 773, 779, 116 L.Ed.2d 903 (1992); Ron Pair Enterprises, 489 U.S." }, { "docid": "10969263", "title": "", "text": "Thus, Muller is not an employee under Iowa Code Ch. 91A.2(3), and Hotsy is not liable under Iowa Code Ch. 91B. The best means for determining whom the Iowa legislature intended to include as an “employee” under Iowa Code Ch. 91A.2(3) is an examination of the statute itself. “The task of resolving the dispute over the meaning of [a statute] begins where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); United States ex rel. Harlan v. Bacon, 21 F.3d 209, 210 (8th Cir.1994) (“When construing a statute, we are obliged to look first to the plain meaning of the words employed by the legislature (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82); United States v. Manthei, 979 F.2d 124, 126 (8th Cir.1992) (“When interpreting statutory language, the court must first look to the plain meaning of the language”) (citing North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102-03, 75 L.Ed.2d 77 (1983)). The Supreme Court describes this rule as the “one, cardinal canon before all others.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Thus, “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Id. (citing Ron Pair, 489 U.S. at 241-42, 109 S.Ct. at 1030-31; United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810)). When the language of the statute is plain, the inquiry also ends with the language of the statute, for in such instances “the sole function of the courts is to enforce [the statute] according to its terms.” Ron Pair, 489 U.S. at 241, 109 S.Ct. at 1030 (quoting Caminetti v. United States, 242 U.S. 470, 485," }, { "docid": "18486933", "title": "", "text": "taken by Continental has been rejected. See In re Pan Am Corp., 929 F.2d 109 (2d Cir.1991) (per curiam), aff'g 125 B.R. 372 (S.D.N.Y.1991); In re Braniff, Inc., 110 B.R. 980 (Bankr.M.D.Fla.1990). We reach the same result. A. PLAIN LANGUAGE We must begin our inquiry with the plain language of the statute. As the Supreme Court has noted, “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.’ ” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); see also Demarest v. Manspeaker,-U.S.-, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991); Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 910 (3d Cir.1989). With respect to the Bankruptcy Reform Act of 1978, the Supreme Court has cautioned that “[i]n such a substantial overhaul of the system, it is not appropriate or realistic to expect Congress to have explained with particularity each step it took. Rather, as long as the statutory scheme is coherent and consistent, there is generally no need for a court to inquire beyond the plain language of the statute.” Ron Pair, 489 U.S. at 240-41, 109 S.Ct. at 1030. We recognize that the so-called “plain meaning” rule is an “axiom of experience” and does not preclude a court from employing extrinsic aids to interpretation. Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981) (quoting Boston Sand and Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53-54, 73 L.Ed. 170 (1928)); see also Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 542-43, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940); Smith, 898 F.2d at 910. Rather, it states a useful presumption in favor of" }, { "docid": "22142914", "title": "", "text": "the grounds that it •... fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). In interpreting this provision, we must first determine whether its language “has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. “Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Id. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Our task here is to determine whether Congress intended an action or appeal “that was dismissed on the grounds that it ... fails to state a claim upon which relief may be granted” to count as a strike under 28 U.S.C. § 1915(g) if that dismissal was specifically designated to be “without prejudice.” The language “fails to state a claim upon which relief may be granted” in § 1915(g) closely tracks the language of Federal Rule of Civil Procedure 12(b)(6). Compare Fed.R.Civ.P. 12(b)(6) (listing “failure to state a claim upon which relief can be granted” as grounds for dismissal). When Congress directly incorporates language with an established legal meaning into a statute, we may infer that Congress intended the language to take on its established meaning. United States v. Langley, 62 F.3d 602, 605 (4th Cir.1995) (“It is firmly entrenched that Congress is presumed to enact legislation with knowledge of the law; that is with the knowledge of the interpretation that courts have given to an existing statute.”); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”). When the word “dismissed” is" } ]

[ { "docid": "10428579", "title": "", "text": "equivalent amount of $350,000. ■ According to the parties, calculating an actuari- . al equivalent necessitates a computer or an actuary. Such calculations are for the parties and the district court in the first instance. We will therefore remand for reeal-j culation of the appropriate damages. C. Attorney’s Fees ERISA allows courts to award, at their discretion, reasonable attorney’s fees. 29 U.S.C. § 1132(g). We review the district court’s award of attorney’s fees and costs for abuse of discretion. Custer v. Pan Ameri can Life Ins. Co., 12 F.3d 410, 422 (4th Cir.1993). In Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1029 (4th Cir.1993), we found that despite the remedial purposes of ERISA to protect employee rights and to secure effective access to federal courts, there was no presumption in favor of awarding attorney’s fees to a prevailing insured or beneficiary. Custer, 12 F.3d at 422. Thus, we set forth five factors to provide general guidelines for district courts in making attorney’s fees determinations under ERISA: (1) degree of opposing parties’ culpability or bad faith; (2) ability of opposing parties to satisfy an award of attorney’s fees; (3) whether an award of attorney’s fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorney’s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions. Quesinberry, 987 F.2d at 1029. The Quesin-berry “five factor approach is not a rigid test, but rather provides general guidelines for the district court.” Id. Indeed, we have recognized that some of the factors may not be appropriate in any given ease. Id. Nonetheless, we require the district court to justify an attorney’s fee determination by evaluating the five factors in order to give us some basis for review. Id. The district judge stated “I have already determined that .... attorney’s fees are appropriate.” The only prior grounds she, however, had given were that “under ERISA [attorney’s fees] are definitely awardable.” Indeed, the" } ]

[ { "docid": "9704232", "title": "", "text": "be liberally construed in favor of protection participants in employee benefits plans. Section 502(g)(1), 29 U.S.C. § 1132(g)(1), authorizes the court to award attorney fees. This section should be read broadly to mean that a plan participant or beneficiary, if he prevails in his suit under § 1132 to enforce his rights under his plan, should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. As in cases involving section 1988 awards, a district court considering a motion for attorney’s fees under ERISA should apply discretion consistent with the purposes of ERISA, those purposes being to protect employee rights and to secure effective access to federal courts. As a general rule, ERISA employee plaintiffs should be entitled to a reasonable attorney’s fee if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir.1985) (citations and internal quotations omitted). In the case at hand, the plaintiffs prevailed completely on the sole issue in question, received the entire relief sought, and resolved a significant legal question regarding the valuation date for persons retiring or terminating their employment. When this result is evident from the order of the district court, it is unnecessary for the court to engage in a discussion of the factors enumerated in Hummell, 634 F.2d at 453. The district court did not abuse its discretion in its decision to award attorneys’ fees to the plaintiffs. EG & G also challenges the amount of the award. It did not take issue with the hourly rates of the attorneys involved, but challenged whether the time spent was reasonable. The district judge considered EG & G’s arguments and we conclude from our review of the record that he did not abuse his discretion in determining the amount of the attorneys’ fees. VI. CONCLUSION The district court correctly concluded that the appropriate valuation date for the plaintiffs’ Savings Plan accounts was September 30, 1987, and its calculation of damages, prejudgment interest, and the award of attorneys’ fees" }, { "docid": "2910698", "title": "", "text": "rights clearly included retirees and was distributed to them. Therefore, those plaintiffs retiring after August 19, 1991, do not hold vested retirement benefits. III. The district court’s denial of plaintiffs’ motion for attorneys’ fees is reviewed for an abuse of discretion. Secretary of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985). A district court is given broad discretion in awarding attorneys’ fees in an ERISA action under 29 U;S.C. § 1132(g). Id. This court adopted the following factors in King, 775 F.2d at 669, as relevant to the district court’s determination: (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party.requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. An abuse of discretion exists only when “the court has the definite and film conviction that the district court made a clear error of judgment in its conclusion upon weighing relevant factors.” Id. No single factor is determinative. Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir.1998), cert. denied, 526 U.S. 1112, 119 S.Ct. 1756, 143 L.Ed.2d 788 (1999). There is no presumption that attorneys’ fees will be awarded. See Foltice v. Guardsman Prods., Inc., 98 F.3d 933, 936 (6th Cir.1996). The district court addressed the King factors in its opinion: First, there was no degree of bad faith on defendant’s part and this Court cannot find a great degree of culpability given the difficulty in determining whether it was intended that benefits vested. Additionally, the Court found benefits to vest for only some of the plaintiffs. Second, defendant admits that it is able to satisfy an award of fees. Third, the Court does not consider that an award of fees would act as a deterrent to other employers under similar circumstances given that defendant did not necessarily act with bad faith. See, for" }, { "docid": "16813276", "title": "", "text": "The district court granted the plaintiffs’ requests, including a $80,000 attorney-fee enhancement. This timely appeal followed, with Flagstar challenging all the components of plaintiffs’ request other than the award of interest. II. ANALYSIS A. Standard of review This court will not disturb a district court’s determination regarding the award of attorney fees and costs unless it concludes that the lower court has abused its discretion. Perotti v. Setter, 935 F.2d 761, 763 (6th Cir.1991). “Abuse of discre tion is defined as a definite and, firm conviction that the trial court committed. a clear error of judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989) (citation omitted). “An abuse of discretion exists when the district court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” First Tech. Safety Sys. v. Depinet, 11 F.3d 641, 647 (6th Cir.1993). B. Attorney fees Flagstar claims that the district court abused its discretion in failing to review the complete billing records of the plaintiffs’ counsel in order to determine whether the requested fee improperly included payment for hours that the attorneys spent working on the claims of the losing plaintiffs. As the district court noted, however, Flagstar “does not directly take issue with the hours detailed by [the plaintiffs’ attorneys] or their hourly rates. Rather, [Flagstar] says that insufficient detail has been furnished in support of the hours of work.” The primary concern in evaluating a request for attorney fees “is that the fee awarded be reasonable.” Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir.1999). “A reasonable fee is one that is adequate to attract competent counsel, but ... [does] not produce windfalls to attorneys.” Id. (internal quotation marks omitted) (alteration in original). In determining a reasonable attorney-fee award, the district court must calculate “the lodestar amount by multiplying the reasonable number of hours billed by a reasonable billing rate.” Id. As noted above, this court will not overturn an attorney-fee award unless we conclude that the district court abused its discretion. The district court found that the billing statements and affidavits" }, { "docid": "23029883", "title": "", "text": "we remand this case to the district court to determine the proper amount of benefits Shelby is entitled to for the hospital services it provided to Mason in accordance with the terms of the Plan. C. Attorney Fees Under 29 U.S.C. § 1132(g)(1), a “court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” A district court must consider the following factors in deciding whether to award attorney fees, (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir.1998) (quoting Secretary of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985)), cert. denied, — U.S. —, 119 S.Ct. 1756, 143 L.Ed.2d 788 (1999). We review a district court’s award or denial of attorney fees for abuse of discretion. See id. The district court denied requests for attorney fees from the Fund and from Shelby. The Fund renews its request for attorney fees in its appeal of the district court’s judgment. Because we affirm the district court’s conclusion that the Board of Trustees’ interpretation of the Plan is unreasonable, the Fund is not entitled to attorney fees. Therefore, the district court did not abuse its discretion in refusing to grant attorney fees to the Fund. Shelby also challenges the district court’s denial of attorney fees and prejudgment interest claiming that the Fund acted in bad faith in denying its claim for benefits and unreasonably interpreted the provisions of the Plan to its detriment. We do not have jurisdiction to consider this argument because Shelby did not file a notice of cross-appeal. See Francis v. Clark Equip. Co., 993 F.2d 545, 552 (6th Cir.1993). III. CONCLUSION For the reasons stated above," }, { "docid": "11164651", "title": "", "text": "reasonably be read to mean that if a missing claimant reappears, he may begin receiving the monthly payments to which he would have been entitled had he applied before his Normal Retirement Date. Without that “reinstated as payable” language, the Plan would require that the payments be made beginning as of the application date, resulting in the claimant losing-the retroactive benefits. Admittedly, there is more than one reasonable reading of the Plan provision. In such a situation, we defer to the interpretation of the plan Administrator. IV. Attorney’s Fees Appellees argue that the district court erred by not awarding attorney’s fees pursuant to 29 U.S.C. § 1182(g)(1), which allows courts, at their discretion, to award attorney’s fees and costs to either party. To guide its discretion, courts in the First Circuit apply a five-factor test. Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir.1996). This test is a “flexible one.... [N]ot every factor must be considered in each case, ... and [ ] no one [factor] should be dispositive.” Gray v. New England Tel. and Tel. Co., 792 F.2d 251, 258 (1st Cir.1986). - The five factors include (1) the degree of bad faith or culpability of a losing party; (2) the ability of such party to personally satisfy an award of fees; (3) whether such an award would deter other persons acting under similar circumstances; (4) the amount of benefit to the action as conferred upon the members of the' pension plan; and (5) the relative merits of the parties’ positions. Id. at 257-58. If the district court applies the correct standard, we will review the grant or denial of attorney’s fees in ERISA cases “solely for abuse of discretion.” Cottrill, 100 F.3d at 223, 227. “Consequently, we will disturb such rulings only if the record persuades us that the trial court indulged a serious lapse in judgment.” Id. at 223 (quotation marks and citation omitted). The record does not indicate that the district court abused its discretion. The court used the correct standard of review, did not find that Twomey acted in bad faith," }, { "docid": "23269495", "title": "", "text": "Cir.2008). “[A]n abuse of discretion exists only when the court has the definite and firm conviction that the district court made a clear error of judgment in its conclusion upon weighing relevant factors.” Id. (quoting Moon v. Unum Provident Corp., 461 F.3d 639, 643 (6th Cir.2006) (per curiam)). B. Analysis ERISA authorizes a district court, in its discretion, to “allow a reasonable attorney[ ] fees and costs of action to either party” in an action by a plan participant. 29 U.S.C. § 1132(g)(1). The Sixth Circuit examines the following five factors to determine whether a district court properly exercised its discretion in awarding attorney fees under § 1132(g)(1): (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Moon, 461 F.3d at 642; accord Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985) (establishing the five-factor test). We have emphasized that “[n]o single factor is determinative, and thus, the district court must consider each factor before exercising its discretion” on the issue of attorney fees. Moon, 461 F.3d at 642-43. Further, “[t]his Court has rejected a presumption that attorney!] fees should ordinarily be awarded to the pre vailing plaintiff.” First Trust Corp. v. Bryant, 410 F.3d 842, 851 (6th Cir.2005). The district court in this case awarded attorney fees after examining each of the five factors, concluding that all five factors weighed in favor of awarding fees to the Med. On appeal, Majestic argues that the district court abused its discretion in analyzing all but the second factor, conceding that it has the ability to pay an award of attorney fees. Because no single factor is determinative, “in reviewing the district court’s decision for an abuse of discretion, we must review [its] findings" }, { "docid": "17093142", "title": "", "text": "omitted). The district court further rejected plaintiffs-appellants’ argument that “exceptional circumstances” justified awarding a higher hourly rate for work performed in this Court in the first appeal. Id. at 10. Accordingly, the district court used an hourly rate of $175 as to all work performed, and one-half that hourly rate for travel. Id. The final amount of the fee award was $10,962, and $907.13 was also awarded in costs. Id. at 13. On appeal, plaintiffs-appellants focus primarily on the district court’s determination of the applicable hourly rate. No challenge is made to the exclusion of hours, to the 40% downward adjustment of the amount of fees awarded, or to the amount of costs awarded. Plaintiffs-appellants argue that the district court erred in failing to consider evidence of the prevailing market rate and relied instead entirely on prior caselaw in fixing the hourly rate. Plaintiffs-appellants also argue that the district court erred in concluding that no “exceptional circumstances” were present meriting an upward adjustment in the hourly rate for work performed in this Court. Plaintiffs-appellants ask us to determine that the applicable hourly rate is $250 as to all work performed and award fees accordingly, or, in the alternative, remand to the district court for reconsideration of the hourly rate or rates to be applied and a recalculation of the fee award. II. DISCUSSION A. Standard of Review Attorney’s fees are authorized by 42 U.S.C. § 1988(b) for parties prevailing on claims under 42 U.S.C. § 1983 in order “to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). We review the district court’s award of attorney’s fees for abuse of discretion, LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998), and “[a] district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record,” id. B. Determination of a Reasonable Hourly Rate The district court began its inquiry by calculating a" }, { "docid": "23148072", "title": "", "text": "its findings were supported by the record; and it granted a discretionary award of attorneys’ fees. We find no abuse of discretion in this decision and therefore reject CFI’s challenge on this point. We apply the same standard of review to the district court’s decision to enhance the lodestar figure under Delaware Valley. See Lattimore v. Oman Constr., 868 F.2d 437, 440 (11th Cir.1989). The district court determined that a fee enhancement was necessary in this case based on its findings that (1) Curry’s attorney worked on a contingency-fee basis, (2) Alabama lawyers who win contingency-fee cases expect to be highly compensated for taking the risk of nonpayment if they lose, and (3) without such enhancement ERISA cases would not attract competent counsel. Based on these findings, the district court did not abuse its discretion in deciding to enhance the award under Delaware Valley. We therefore reject CFI’s challenge on this point as well. Finally, we reject Curry’s cross-appeal regarding the court’s hourly rate figure. Again, the district court has discretion to select a reasonable hourly rate, and this court will not set aside that selection unless it constitutes a clear abuse of discretion. No such abuse has occurred here. Based on our conclusion that the district court did not clearly abuse its discretion, we affirm the award of attorneys’ fees in the amount of $15,766.47. IV. Under 29 U.S.C. § 1132(c) (1982), the district court has discretion to award a civil penalty. Although an ERISA claimant must ordinarily exhaust available administrative remedies before bringing an ERISA claim to court, courts have discretion not to require exhaustion where it would be futile or where the plan administrator has denied the claimant meaningful access to the available review procedures. In this case, the court properly exercised its discretion and allowed Curry to prosecute his ERISA claim without having exhausted his administrative remedies. In exercising its discretion under section 1132(c), the district court also may consider whether the plan administrator’s failure to provide documents prejudiced the claimant; prejudice, however, is not a prerequisite to an award of a civil penalty under section" }, { "docid": "23606182", "title": "", "text": "retained her attorney and was informed of this option. See id.; Bishop v. District of Columbia, 788 F.2d 781, 783 n. 1 (D.C.Cir.1986). Further, the Union does not allege the delay in prosecuting the claim prejudiced its defense in the form of lost evidence or unavailability of witnesses. See Whitfield, 820 F.2d at 245. We thus conclude the district court did not abuse its discretion in declining to reduce the back pay award under the doctrine of laches. The Union and Long next contest the district court’s decision to award Hukkanen an immediate lump sum payment of her pension benefits. The Union and Long believe Hukkanen should not receive her pension benefits until she reaches retirement age. When a successful constructive discharge plaintiff is not reinstated, however, the district court may award the present value of the plaintiffs interest in the pension plan as of the date of settlement. Loeb v. Textron, Inc., 600 F.2d 1003, 1021 (1st Cir.1979). By the time the district court awarded Hukkanen damages in February 1992, Hukkanen would have been vested in her plans for several years. The pension benefit award was based on the present value of Hukkanen’s plan benefits, assuming Hukkanen’s participation up to the date of the award. The award did not go beyond making Hukkanen whole. See Glover v. McDonnell Douglas Corp., 981 F.2d 388, 397 (8th Cir.1992), petition for cert. filed, 62 U.S.L.W. 3009 (U.S. July 2, 1993) (No. 93-34). We do not believe the district court abused its discretion. The Union and Long also challenge the district court’s application of an attorney’s fee multiplier. The district court tripled the lodestar amount to reflect the risk of loss a lawyer faces in taking a sexual harassment case against a high profile defendant on a contingent fee basis. After the district court awarded the attorney’s fees in this case, the United States Supreme Court held the federal fee shifting statutes do not allow enhancement of a fee award beyond the lodestar amount to reflect that a party’s attorneys were retained on a contingency basis. City of Burlington v. Dague, — U.S." }, { "docid": "23269496", "title": "", "text": "relative merits of the parties’ positions. Moon, 461 F.3d at 642; accord Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985) (establishing the five-factor test). We have emphasized that “[n]o single factor is determinative, and thus, the district court must consider each factor before exercising its discretion” on the issue of attorney fees. Moon, 461 F.3d at 642-43. Further, “[t]his Court has rejected a presumption that attorney!] fees should ordinarily be awarded to the pre vailing plaintiff.” First Trust Corp. v. Bryant, 410 F.3d 842, 851 (6th Cir.2005). The district court in this case awarded attorney fees after examining each of the five factors, concluding that all five factors weighed in favor of awarding fees to the Med. On appeal, Majestic argues that the district court abused its discretion in analyzing all but the second factor, conceding that it has the ability to pay an award of attorney fees. Because no single factor is determinative, “in reviewing the district court’s decision for an abuse of discretion, we must review [its] findings as to each of the five King factors.” Moon, 461 F.3d at 643. With respect to Majestic’s culpability or bad faith, the district court found that Majestic acted culpably in denying the claim for benefits because Majestic was “almost entirely uninvolved in the denial.... ” (ROA vol. 1 at 27.) Challenging this conclusion, Majestic argues that a “finding of insufficient involvement in a benefits decision is not a finding of culpability,” and that the purpose of determining whether a plan administrator exercised its discretion “is to determine the appropriate standard of review, not to determine culpability.” (Def.Br.52.) Where a plan administrator engages in an inadequate review of the beneficiary’s claim or otherwise acts improperly in denying benefits, we have found that attorney fees are appropriate. For example, in Moon, the district court determined that the plan administrator acted culpably because it engaged in a selective review of the record, and relied solely on the opinion of its in-house physician who never examined the claimant. Id. at 643-44; see Hoover v. Provident Life & Accident Ins." }, { "docid": "16564967", "title": "", "text": "American Radiator & Standard Sanitary Corp., 540 F.2d 102, 109-11 (3d Cir. 1976), argue that an award of attorneys’ fees is inappropriate where, as here, the litigation involves competing interests in a common fund. They contend that there has been no net benefit to the entire class of Fund participants as the result of the litigation. Again, relying on Lindy Brothers, thej maintain that where there is no benefit to the Fund, fees may not be awarded. Further, they stress that Janowski did not prevail on the normal retirement age which, they contend, is the principal issue. It is well-settled that the standard of review of trial court awards of attorneys’ fees is abuse of discretion and that “[a]n abuse of discretion is found only when there is a definite conviction that the court made a clear error of judgment in its conclusion upon weighing relevant factors.” Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir. 1980). It is equally well-settled that in determining whether an award of attorneys’ fees in suits brought under ERISA is appropriate, courts have considered the following factors: (1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability of the offending parties to satisfy personally an award of attorneys’ fees; (3) whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances; (4) the amount of benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties’ positions. Iron Workers Local 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980); Eaves v. Penn, 587 F.2d 453 (10th Cir. 1978). Unfortunately, the district court did not justify its decision to award attorneys’ fees in terms of these specific guidelines, which would have been helpful in reviewing its decision for abuse of discretion. However, while a fuller explanation of its reasoning would have been helpful, there is sufficient analysis in the district court’s decision to permit review. The district court primarily based its award on the fact that Janowski, although" }, { "docid": "11164652", "title": "", "text": "New England Tel. and Tel. Co., 792 F.2d 251, 258 (1st Cir.1986). - The five factors include (1) the degree of bad faith or culpability of a losing party; (2) the ability of such party to personally satisfy an award of fees; (3) whether such an award would deter other persons acting under similar circumstances; (4) the amount of benefit to the action as conferred upon the members of the' pension plan; and (5) the relative merits of the parties’ positions. Id. at 257-58. If the district court applies the correct standard, we will review the grant or denial of attorney’s fees in ERISA cases “solely for abuse of discretion.” Cottrill, 100 F.3d at 223, 227. “Consequently, we will disturb such rulings only if the record persuades us that the trial court indulged a serious lapse in judgment.” Id. at 223 (quotation marks and citation omitted). The record does not indicate that the district court abused its discretion. The court used the correct standard of review, did not find that Twomey acted in bad faith, and found that the Plan was susceptible to readings at odds with that of the Committee. In addition, the district court found that an award of attorney’s fees might deter plaintiffs with claims of merit from filing suit. While we might have balanced the factors slightly differently, “[a]bsent a mistake of law or a clear error in judgment — neither of which is evident here — we must defer to the trial court’s first-hand knowledge and to its battlefield determination that the specific facts of this case do not. warrant a fee award.” Cottrill, 100 F.3d at 227. V. Conclusion The judgment of the district court is affirmed. Costs are taxed against appellant. . All references to the \"Plan” refer to the 1985 Plan. . Twomey sprinkles throughout his brief a variety of other challenges to the Committee’s interpretation, all of which we find groundless. . \"If the present value of any nonforfeitable benefit with respect to a participant in a plan exceeds $3,500, the plan shall provide that such benefit may not be immediately" }, { "docid": "23661090", "title": "", "text": "for abuse of discretion.” Schake v. Colt Indus. Operating Corp. Severance Plan, 960 F.2d 1187, 1190 (3d Cir.1992). “Our review of the legal standards a district court applies in the exercise of its discretion is, however, plenary.” Ellison v. Shenango Inc. Pension Bd., 956 F.2d 1268, 1273 (3d Cir.1992). II. Both McPherson and the Plan agree that the second Ursic factor — “the ability of the offending parties to satisfy an award of attorneys’ fees” — favors an award. As for the fourth Ursic factor — “the benefits conferred on members of the pension plan as a whole” — the district court quite properly regarded this factor as weighing against McPherson. The fourth factor requires consideration of the benefit, if any, that is conferred on others by the court’s judgment. Before McPherson began his lawsuit, the Plan was amended to limit lump-sum distributions to participants who retired directly from the Company and to eliminate the Committee’s discretion to approve or deny lump-sum distributions. McPherson’s suit thus held out no possibility of benefit to other similarly situated Plan members because there were, and would be, no other similarly situated Plan members. III. We thus find no fault with respect to the district court’s application of the second and fourth Ursic factors. There is an error of law, however, that infects the remainder of the district court’s analysis. As we read the district court’s comments, they appear to reflect a view that the first, third, and fifth factors cannot favor an award in the absence of a finding that the defendants have acted with a “sinister motive,” i.e., that they have acted in “bad faith.” We conclude that this view is inconsistent with the analysis contemplated by Ursic and that a proper Ursic analysis in this case might result in an award to McPherson. The district court concluded that the first Ursic factor — “the offending parties’ culpability or bad faith” — did not favor an award of attorneys’ fees because “[t]here is no indication that the Committee acted in bad faith in denying plaintiff’s lump sum benefit request.” McPherson insists that" }, { "docid": "16813279", "title": "", "text": "fees and costs.” Flagstar has failed to point to any specific entries which would cause it to doubt the veracity of Attorney Tomkowiak’s sworn statement. After reviewing the entries ourselves, we find no reason to doubt the accuracy of the billing statements or the reasonableness of the number of hours billed. We therefore conclude that the district court did not abuse its discretion in awarding the plaintiffs $160,766.80 in attorney fees. Because, however, we have reversed the district court’s denial of Flagstar’s motion for judgment as a matter of law with respect to the Paschals’ claim, the attorney fees will have to be recalculated on remand. C. Attorney-fee enhancement Flagstar claims that the district court abused its discretion in granting the plaintiffs an attorney-fee enhancement of $80,000. In particular, Flagstar contends that two of the district court’s reasons for granting an enhancement — the “arduous and time consuming nature” of the litigation and the fact that the plaintiffs’ attorneys did “an excellent job at trial” — are improper under Supreme Court precedent. Flagstar also disputes the district court’s conclusion that the hourly rates used to calculate the “lodestar” award were “modest.” In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), the Fifth Circuit enunciated 12 factors that trial courts may consider in calculating reasonable attorney-fee awards. The Supreme Court has determined that “Johnson’s ‘list of 12’ ... provides a useful catalog of the many factors to be considered in assessing the reasonableness of an award of attorney’s fees.... ” Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). These 12 factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (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)" }, { "docid": "23269494", "title": "", "text": "ERISA context is “compensatory, not punitive, and a finding of wrongdoing by the defendant is not a prerequisite to such an award.” Tiemeyer v. Cmty. Mut. Ins. Co., 8 F.3d 1094, 1102 (6th Cir.1993) (internal citations omitted). Majestic’s sole challenge to the award of prejudgment interest is that because its decision to withhold benefits “was neither incorrect nor inequitable,” the district court abused its discretion in awarding prejudgment interest. However, as discussed above, Majestic erroneously denied Weatherspoon’s claim for benefits. Because Majestic incorrectly withheld benefits, the district court was within its discretion to grant the Med’s motion for prejudgment interest. See Wells v. U.S. Steel & Carnegie Pension Fund, 76 F.3d 731, 737 (6th Cir.1996) (upholding an award of prejudgment interest where the plan administrator “wrongly withheld” benefits). We therefore affirm the district court’s award of prejudgment interest. VI. ATTORNEY FEES A. Standard of Review This Court reviews a district court’s decision to award attorney fees in an ERISA action for abuse of discretion. Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 529 (6th Cir.2008). “[A]n abuse of discretion exists only when the court has the definite and firm conviction that the district court made a clear error of judgment in its conclusion upon weighing relevant factors.” Id. (quoting Moon v. Unum Provident Corp., 461 F.3d 639, 643 (6th Cir.2006) (per curiam)). B. Analysis ERISA authorizes a district court, in its discretion, to “allow a reasonable attorney[ ] fees and costs of action to either party” in an action by a plan participant. 29 U.S.C. § 1132(g)(1). The Sixth Circuit examines the following five factors to determine whether a district court properly exercised its discretion in awarding attorney fees under § 1132(g)(1): (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the" }, { "docid": "23350734", "title": "", "text": "Supreme Court has held, “[pjlan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). For these reasons, we agree with the district court that MetLife’s decision to terminate Williams’ long-term disability benefits for the applicable period was an abuse of discretion. III. A. MetLife also appeals from the district court’s order awarding Williams attorneys’ fees of $18,240, and costs in the amount of $350.00. In an ERISA action, a district court may, in its discretion, award costs and reasonable attorneys’ fees to either party under 29 U.S.C. § 1132(g)(1), so long as that party has achieved “‘some degree of success on the merits.’ ” Hardt v. Reliance Std. Life Ins. Co., — U.S. -, 130 S.Ct. 2149, — L.Ed.2d — (2010) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983)). We review a district court’s award of attorneys’ fees to a qualifying litigant to determine whether the court has abused its discretion. Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212, 221 (4th Cir.2005). The district court’s factual findings in support of such an award are reviewed for clear error. Carolina Care Plan, Inc. v. McKenzie, 467 F.3d 383, 390 (4th Cir.2006), overruled on other grounds by Champion, 550 F.3d 353; Hyatt v. Shalala, 6 F.3d 250, 255 (4th Cir.1993). We observe that the Supreme Court issued its decision in Hardt after we heard oral argument on the present appeal. We conclude that the holding in Hardt requires us to change our analytical approach to the review of an attorneys’ fees award in an ERISA case. Before the decision in Hardt, the rule in this Circuit was that only a “prevailing party” was eligible for an award of attorneys’ fees in an action under ERISA. See Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201, 1210 (4th Cir.1997). In Hardt, the Supreme Court expressly rejected our “prevailing party” requirement." }, { "docid": "6451970", "title": "", "text": "the district court erred in awarding Plaintiff post-offer attorneys’ fees and costs. Accordingly, we vacate the district court’s final judgment and remand for further proceedings to correct this error. IV. Defendant next contends that, assuming arguendo Plaintiff is entitled to recover some amount of attorneys’ fees and costs as a prevailing party on his SOX whistle-blower claim, the district court abused its discretion in arriving at the amounts awarded. In this regard, Defendant attacks the district court’s analysis on numerous grounds. The following three are worthy of us specifically addressing: (1) Plaintiff failed to carry his burden of proof that the hourly rate sought for each of his attorneys was reasonable; (2) the district court abused its discretion when determining the number of hours reasonably expended by Plaintiffs attorneys; and (3) the district court’s finding that the deadlines it imposed required Plaintiff to work at a faster pace is clearly erroneous, and thus, the district court erred by factoring such finding into its Fee Award. We review a district court’s award of attorney’s fees for abuse of discretion. Johnson v. City of Aiken, 278 F.3d 333, 336 (4th Cir.2002). Indeed, “[o]ur review of the district court’s award is sharply circumscribed; we have recognized that because a district court has close and intimate knowledge of the efforts expended and the value of the services rendered, the fee award must not be overturned unless it is clearly wrong.” Plyler v. Evatt, 902 F.2d 273, 277-78 (4th Cir.1990) (internal quotation marks, citations, and alteration marks omitted). Here, the parties agree that in calculating an appropriate attorneys’ fee award, a district court must first determine the lodestar amount (reasonable hourly rate multiplied by hours reasonably expended), applying the Johnson/Barber factors when making its lodestar determination. Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 (4th Cir.1978) (adopting twelve factor test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), overruled on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). See also Hensley v. Eckerhart, 461 U.S. 424, 434 n. 9, 103 S.Ct." }, { "docid": "23679214", "title": "", "text": "Jones, there is no explicit requirement in the Plan for a reevaluation after an initial finding of disability. The mere fact that the Plan provides for a monthly payment of benefits does not suggest such a requirement. Additionally, the Plan indicates that evidence of continued disability need be provided only “upon request,” rather than prior to each monthly payment. Moreover, the only other language in the Plan that refers to a benefit period establishes the maximum period for benefits for the insured at age sixty-five. Finally, even assuming that the District Court was required to find continued disability, Dr. Podell testified at trial that Locher was then disabled, and the District Court credited this testimony. UNUM has submitted no evidence to suggest that Locher’s disability did not persist through the date of the District Court’s judgment, and by denying Locher her benefits starting in 1993, UNUM may not now challenge an award on the basis of an insufficiency of information for which it is responsible. Accordingly, UNUM’s challenge to the District Court’s award of benefits fails. V. Attorneys’Fees Pursuant to 29 U.S.C. § 1132(g)(1), a court has discretion to award reasonable attorneys’ fees “to either party” in an ERISA action. The decision of whether to award attorneys’ fees is ordinarily based on five factors: (1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney’s fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants. Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987). “ERISA’s attorney’s fee provisions must be liberally construed to protect the statutory purpose of vindicating retirement rights ....” Id. at 872. UNUM claims that the “American Rule” applies where an ERISA claimant prevails after a District Court conducted a trial and considered evidence outside the administrative record as part of its de novo review. We have not" }, { "docid": "23148071", "title": "", "text": "has clearly abused its discretion. Dixon, 878 F.2d at 1312; Fine v. Semet, 699 F.2d 1091, 1095 (11th Cir.1983). As we explained in Fine, “[tjhis standard of review permits an area of decision in which a district court could go either way without reversal on review.” 699 F.2d at 1095 (citing Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir.1979)). Applying the Bowen factors in the present case, the district court found (1) that Haber acted in bad faith, misrepresenting that Curry had to wait two years after leaving CFI before receiving his benefits and then fraudulently denying Curry his benefits in retaliation for his having accepted employment with a competitor; (2) that Haber and CFI could afford reasonable fees; (3) that the award of attorneys’ fees was likely to prevent Haber from further abusing his position as plan administrator, thus (4) providing a common benefit for all plan participants and beneficiaries; and (5) that relative to Haber’s bad faith conduct, Curry’s claims were clearly meritorious. The district court carefully analyzed each of these factors; its findings were supported by the record; and it granted a discretionary award of attorneys’ fees. We find no abuse of discretion in this decision and therefore reject CFI’s challenge on this point. We apply the same standard of review to the district court’s decision to enhance the lodestar figure under Delaware Valley. See Lattimore v. Oman Constr., 868 F.2d 437, 440 (11th Cir.1989). The district court determined that a fee enhancement was necessary in this case based on its findings that (1) Curry’s attorney worked on a contingency-fee basis, (2) Alabama lawyers who win contingency-fee cases expect to be highly compensated for taking the risk of nonpayment if they lose, and (3) without such enhancement ERISA cases would not attract competent counsel. Based on these findings, the district court did not abuse its discretion in deciding to enhance the award under Delaware Valley. We therefore reject CFI’s challenge on this point as well. Finally, we reject Curry’s cross-appeal regarding the court’s hourly rate figure. Again, the district court has discretion to select a reasonable" }, { "docid": "2478916", "title": "", "text": "SUMMARY ORDER Defendants Gristede’s Operating Corp. and certain related companies and individual officers (collectively, “Gristede’s”) appeal from an award of $3,858,059.85 — comprising $3,415,450.00 in attorney’s fees and $442,609.85 in costs — in connection with a $3,530,000 settlement on the eve of trial of class action claims under the Fair Labor Standards Act (“FLSA”), see 29 U.S.C. § 201 et seq., and New York state law, see N.Y. Lab. Law § 650 et seq.; see also 29 U.S.C. § 216(b) (authorizing award of “reasonable attorney’s fee” and costs to successful FLSA plaintiff); N.Y. Lab. Law § 663(1) (same for state law claims). We review the challenged fee award only for abuse of discretion, which we will not identify unless the award is predicated on an error of law, is based on clearly erroneous factfinding, or cannot be located within the range of permissible decisions. See Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir.2011). Purporting to identify each type of error, Gristede’s submits that the district court (1) failed adequately to examine plaintiffs’ counsel’s billing records, which task, if performed, would have prompted a reduction greater than the 15% applied to the requested fees; (2) erroneously relied on Gristede’s’ “vigorous approach to litigating this case” to justify the fee award, Torres v. Gristede’s Operating Corp., No. 04 Civ. 3316(PAC), 2012 WL 3878144, at *4 (S.D.N.Y. Aug. 6, 2012); and (3) impermissibly awarded fees and costs in a total sum that was disproportionate to the settlement and that exceeded the customary one-third recovery in contingency fee cases. Gristede’s further maintains that the district court should not have awarded costs related to expert witnesses. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to affirm the challenged award in all respects. 1. Failure To Analyze Billing Records Gristede’s contends that, although the district court reduced the amount of attorney’s fees sought, it abused its discretion both by not meaningfully analyzing the contemporaneous billing records submitted by plaintiffs’ counsel and by failing expressly to consider the factors set forth in Johnson" } ]

[ { "docid": "20371269", "title": "", "text": "136-37, 101 S.Ct. at 437-38 (Double Jeopardy Clause does not apply to judicial determinations “developed outside of the courtroom”). Finally, some sentencing issues, such as whether the defendant has provided “substantial assistance,” may remain open for a long period of time, and resentencings for a variety of reasons are not uncommon. In short, this is hot a trial-like environment well-suited to the funetional-equivalent-to-acquittal analysis underlying Burks. 3. Woodall cites no case applying the Burks principle to § 924(e) sentencing, or indeed to any post-guidelines federal sentencing issue. The Seventh Circuit rejected this contention in Hudspeth, and a number of eases have assumed that a defendant may be resentenced under § 924(e). For example, after the Supreme Court’s decision in Taylor, we remanded to the district court, which reimposed the § 924(e)(1) enhancement. On appeal, we consolidated Taylor with another § 924(e) appellant, Banks. We affirmed both § 924(e) resentencings as consistent with the new burglary standard of Taylor without discussing Burks or the Double Jeopardy Clause even though on remand the government had expanded the sentencing record “in a critical respect.” United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 882, 112 S.Ct. 232, 116 L.Ed.2d 188, and 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991). Likewise, the court in United States v. Harris, 964 F.2d 1234, 1235 (1st Cir.1992), assumed that resentenc-ing under § 924(e) is the proper remedy when the government fails to establish the requisite “violent felonies.” No doubt, the double jeopardy issue was not raised in these eases, but they, illustrate that application of Burks to federal sentencing reversals would disrupt widely-accepted practice and expécta-tions. 4. The Supreme' Court has noted that expansive application of the Double Jeopardy Clause may cause appellate courts to be less zealous in correcting trial court errors. See United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). We conclude that superimposing the Burks principle on federal sentencing proceedings would be a complex and difficult task, fraught with uncertainties. On the other hand, permitting resentencing under present federal" } ]

[ { "docid": "7500847", "title": "", "text": "be violative of the Double Jeopardy Clause. The Court recognizes that, under the “sentence package” rule, a sentencing court can modify the sentence imposed upon the individual counts of a multi-count conviction where the defendant has succeeded in challenging less than all of those convictions on direct appeal. United States v. Pimienta-Redondo, supra, 874 F.2d at 16; United States v. Shue, 825 F.2d 1111, 1114-15 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987); United States v. Rosen, 764 F.2d 763, 766-67 (11th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); see also United States v. McKnight, 17 F.3d 1139, 1144-46 n. 8 (8th Cir.) (opinion of Lay, J., not joined by Magill & Hansen, JJ.), cert. denied, — U.S.-, 115 S.Ct. 275,130 L.Ed.2d 192 (1994). However, the Double Jeopardy Clause prevents the sentencing court from doing so once the defendant has developed a legitimate “expectation of finality in the original sentence” imposed on his unsuccessfully appealed, or non-appealed, convictions. United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980). For two reasons, the Court concludes that defendant had such a legitimate expectation of finality in his seventy-eight month sentence imposed on his Drug-Related Convictions at the time this motion was filed. First, while it is true that a defendant cannot be said to have a legitimate expectation of finality in his sentence when he directly challenges either his sentence or the conviction from which it derives, Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289-90, 102 L.Ed.2d 265 (1988), it must be remembered that defendant has not, in the present motion, mounted any attack upon his Drug-Related Convictions or sentences. Compare Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam). The \"sentence package\" rule, as indicated by the cases cited above, is usually applied to permit resentencing when the defendant has challenged all of his convictions on direct appeal, and has succeeded in having some, but not all, of those convictions vacated. The Court is" }, { "docid": "2641582", "title": "", "text": "As stated above, however, Merritt did not receive three separate sentences but rather one aggregate sentence, which has not been fully served. Having imported the sentence package rule from the direct appeal context into the collateral attack context, the court has precluded Merritt’s double jeopardy argument. “Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan.... Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” Pimienta-Redondo, 874 F.2d at 16 (quoting United, States v. Shue, 825 F.2d 1111, 1115 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987)). See Mixon, 926 F.Supp. at 180-81 (rejecting double jeopardy argument); Alton, 928 F.Supp. at 887-88 (same). b. Due Process Merritt also argues that resentencing would violate his due process rights. As stated by the Fourth Circuit, “due process may ... be denied when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized and it would be fundamentally unfair to defeat them.” United States v. Lundien, 769 F.2d 981, 987 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986). Relying again on the argument that his sentences on the drug counts have been fully served, Merritt argues that those sentences must be accorded finality and any enhancement of them would violate his due process rights. As stated above, however, Merritt did not receive separate sentences on the drug counts, he received one 111-month sentence, which has not been fully served. Also, enhancement in this case will lead to a shorter sentence than the 111-month term originally imposed. As such, the resentencing cannot be said to defeat any expectations Merritt may have had as to the finality of his sentence. Resentencing, therefore, will not violate Merritt’s due process rights. See Alton, 928 F.Supp. at 887-88 (rejecting due process argument). For the reasons discussed above, petitioner’s § 2255 motion to vacate the sentence on his § 924(c)(1)" }, { "docid": "7500876", "title": "", "text": "need not consider what effect, if any, the amendments of section 105 might have in this case. See Landgraf v. USI Film Prod., 511 U.S. 244, —-—, 114 S.Ct. 1483, 1497-1505, 128 L.Ed.2d 229 (1994) (statutes must be construed to operate prospectively unless Congress manifests a clear intent to the contrary); Hicks v. Brown Group, 982 F.2d 295, 297-98 (8th Cir. 1992) (en banc) (same), cert. denied, — U.S. —, 114 S.Ct. 1642, 128 L.Ed.2d 363 (1994). . Davis, rather than Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), applies to this case, since this case concerns the retroactive application of the Supreme Court's construction of a criminal statute, and not one involving a rule of constitutional criminal procedure. E.g., United States v. McKie, 73 F.3d 1149, 1153 (D.C.Cir.1996) (citing numerous cases). . The Judgment and Commitment Order entered in this case on May 7, 1990 (which was entered following the Court of Appeals’ remand directing that defendant be sentenced under the Guidelines) states that the 120-month term imposed on the § 924(c)(1) count (Count 3) was \"to run consecutive to” that imposed on the Drug-Related Convictions (Counts 1 and 2). The natural reading of this ordering therefore indicates that the sentence on the Drug-Related Convictions will run prior to that imposed on the § 924(c)(1) count, even though the strict language of § 924(c)(1) does not seem to mandate such an ordering. (There appears to be no reason, given the statutory language, why the sentencing court could not direct that the predicate drug count run consecutive with the gun count, thereby causing the gun count to be served first). . The Government cites, inter alia, United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.) (en banc), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), for the proposition that resentencing is appropriate when a single count of a multi-count conviction has been reversed. However, in Pimienta-Redondo, the defendants had not served the duration of the non-reversed sentences previously imposed, id. at 15, and they had, in fact, placed those sentences in" }, { "docid": "2641578", "title": "", "text": "” (J. at 2.) Contrary to Merritt’s assertions, the court did not impose separate sentences for each of the violations. The court imposed one aggregate sentence. That the judgment clarifies the elements of the sentence package does not affect this conclusion. Resen-tencing requires the court to reexamine the aggregate sentence thus allowing it to enhance the sentences on the other convictions as appropriate. See United States v. Garcia, 956 F.2d 41, 45 (4th Cir.1992) (“The § 2255 remedy is broad and flexible, and entrusts the courts the power to fashion an appropriate remedy.”). This conclusion finds support in cases in the direct appeal context holding that when a defendant’s conviction under § 924(c)(1) is reversed on appeal, the ease is subject to remand for resentencing to determine the applicability of the § 2D 1.1 enhancement. See United States v. Lang, 81 F.3d 955, 963-64 (10th Cir.1996); United States v. Bermudez, 82 F.3d 548, 550 (2d Cir.1996). These cases rest on the “sentence package” or “aggregate sentence” rule. See Bermudez, 82 F.3d at 550 (“[A] sentencing judge c[an], on remand, increase the sentence on a specific count where the original sentence was imposed as part of a ‘package’ that included a mandatory consecutive sentence which was subsequently found to be invalid.”) (quotation omitted). In United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), the United States Court of Appeals for the First Circuit explained the “sentence package” rule as follows: [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits" }, { "docid": "7500878", "title": "", "text": "issue by direct appeal. Id. For precisely the same reasons, the Eighth Circuit's recent decisions in United States v. Burke, 80 F.3d 314 (8th Cir. 1996), and Woodall v. United States, 72 F.3d 77 (8th Cir. 1995), are inapposite. . In Sanabria, which, like this case, involved a Bailey challenge to a § 924(c)(1) conviction raised in a § 2255 motion, the district court simply elected to resentence the defendant on his drug conviction. The Sanabria decision, while containing a thorough discussion of the retroactivity question, did not contain any discussion of that court’s authority to resentcnce the defendant. The Sanabria court did not address the double jeopardy issue (or the other issues) raised by this Court, and there is no indication of the time served by the defendant on his underlying drug sentence in that case. Thus, a meaningful determination of that defendant’s legitimate expectation of finality in his drug related sentence is not possible. For these reasons, the Court finds the Sanabria decision unpersuasive as it pertains to the resentencing issue. . ”[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....\" U.S. Const. amend. V. Amongst oth er things, the Double Jeopardy Clause protects against multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 2525-26, 105 L.Ed.2d 322 (1989). . Whether the \"sentence package\" rule has any application outside the context of a remand following a direct appeal is a highly debatable question as to which the Cor(rt has serious doubts. See United States v. Henry, 709 F.2d 298, 308-09 & n. 16 (5th Cir.1983) (en banc). . Indeed, once a defendant’s sentence is no longer subject to attack on direct appeal, it can be seriously argued that the defendant’s legitimate expectation of finality attaches. See United States v. DiFrancesco, supra, 449 U.S. at 136-37, 101 S.Ct. at 437-38. . The recent case of United States v. Gruenberg, 53 F.3d 214 (8th Cir.1995), is not to the contrary, since that Rule 35 case did not involve increasing the sentences imposed" }, { "docid": "19117685", "title": "", "text": "Id. at 251. The defendant has made no showing of any such exceptional circumstance here. Finally, the defendant contends that the district court should have reduced his sentence based on his rehabilitation efforts while incarcerated. The Supreme Court recently confirmed that post-offense rehabilitation may, in appropriate circumstances, constitute a basis for a discretionary sentence reduction. See Pepper v. United States, — U.S. -, 131 S.Ct. 1229, 1241, 179 L.Ed.2d 196 (2011). To say that such a reduction is theoretically available is not to say that it is compelled. The instant claim of post-offense rehabilitation is not new: the defendant raised the issue below, and the district court, at least by implication, rejected it. We have reviewed the proffered evidence of rehabilitation and do not find it irresistible. In the main, judgment calls of this sort “are for the sentencing court, not for this court.” United States v. Madera-Ortiz, 637 F.3d 26, 32 (1st Cir.2011). So it is here. There is one loose end. When a defendant successfully challenges one of several interdependent sentences, the proper course often is to remand for re-sentencing on the other (non-vacated) counts. See United States v. Pimienta-Redondo, 874 F.2d 9, 14-16 (1st Cir.1989) (en banc). This is such a case. We have vacated the consecutive sentence (count 2), yet the statutory requirement that a part of the sentencing package run consecutively, see supra note 1, arguably applies to section 924(j) (count 3). See, e.g., United States v. Dinwiddie, 618 F.3d 821, 837 (8th Cir.2010); United States v. Battle, 289 F.3d 661, 666, 668-69 (10th Cir.2002). In view of these circumstances, we think it likely that the district court may wish to unbundle and reconstitute the sentencing package. See Pimienta-Redondo, 874 F.2d at 14. The district court may also wish to ameliorate the overall sentence in light of the reduced number of counts on which sentence will be imposed. We need go no further. For the reasons elucidated above, we affirm the defendant’s conviction on counts 1 and 3, vacate his conviction and sentence on count 2, and remand for resentencing on the two remaining counts." }, { "docid": "20337803", "title": "", "text": "our assessment of the record conduces to the same conclusion, we reverse the appellant’s conviction under 18 U.S.C. § 924(c) and direct, the district court to enter judgment in Valle’s favor on that count. V. CONCLUSION To recapitulate, we affirm the appellant’s conviction on the drug trafficking charge and reverse his conviction on the firearms charge. Since it is conceivable that our disposition of the latter count might affect the sentencing calculus in regard to the former count, we honor counsels’ joint request and remand to the district court for possible reconsideration of the sentence originally imposed on the drug trafficking count. See generally United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc) (discussing, in a pre-Guidelines ease, the district court’s “authority to reshape a sentence when multiple convictions gamer mixed reviews on appeal — some affirmed, some reversed”), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989). We need go no further. We intimate no view as to whether the district court should undertake to reconsider the sentence previously imposed or, if it chooses to do so, what the appropriate outcome of such reconsideration might be. Affirmed in part, reversed in part, and remanded. . Except for his contention that he invoked certain of his rights prior to questioning, the appellant has not maintained that his responses to police queries represented anything less than a knowing and intelligent waiver of his Miranda rights. Any such argument is, therefore, waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). . Since we uphold the lower court’s finding that the appellant did not assert his rights, but, rather, voluntarily elected to answer the officers’ questions, we need not assess the correctness of the court’s holding that the appellant’s initial statement comprised a spontaneous utterance, not a response to constructive interrogation. Though the detective's special brand of valet service was heavy-handed (both literally and figuratively), there is no basis on the present record for suppression of the appellant’s retort. . DeAngelis's testimony" }, { "docid": "2641579", "title": "", "text": "judge c[an], on remand, increase the sentence on a specific count where the original sentence was imposed as part of a ‘package’ that included a mandatory consecutive sentence which was subsequently found to be invalid.”) (quotation omitted). In United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), the United States Court of Appeals for the First Circuit explained the “sentence package” rule as follows: [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both the crime and the criminal. Id. at 14. The court sees no reason why this rule should not apply in the collateral attack context as well. Here, the § 2D1.1 enhancement was not applied because Merritt was convicted under § 924(c)(1). Now that the § 924(c)(1) conviction has been vacated, the prohibition against double counting does not apply. In order to ensure that the sentence “still fits both the crime and the criminal,” id., resentencing must occur. See Pedretti, 1996 WL 340769 at *2 (§ 2255 and court’s “inherent authority” allow it to modify defendant’s sentence after one count is vacated); Mixon, 926 F.Supp. at 181 (“To properly ‘correct’ Petitioner’s sentence pursuant to Section 2255, the Court has to include the two level offense enhancement pursuant to [§ 2D1.1].”). 3. Constitutional Limitations On Resentencing Having determined that the court has the authority under § 2255 to resentence Merritt, it must now determine whether an exercise of that authority is consistent with due process and the prohibition against double jeopardy. a. Double Jeopardy The Fifth" }, { "docid": "7500877", "title": "", "text": "the § 924(c)(1) count (Count 3) was \"to run consecutive to” that imposed on the Drug-Related Convictions (Counts 1 and 2). The natural reading of this ordering therefore indicates that the sentence on the Drug-Related Convictions will run prior to that imposed on the § 924(c)(1) count, even though the strict language of § 924(c)(1) does not seem to mandate such an ordering. (There appears to be no reason, given the statutory language, why the sentencing court could not direct that the predicate drug count run consecutive with the gun count, thereby causing the gun count to be served first). . The Government cites, inter alia, United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.) (en banc), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), for the proposition that resentencing is appropriate when a single count of a multi-count conviction has been reversed. However, in Pimienta-Redondo, the defendants had not served the duration of the non-reversed sentences previously imposed, id. at 15, and they had, in fact, placed those sentences in issue by direct appeal. Id. For precisely the same reasons, the Eighth Circuit's recent decisions in United States v. Burke, 80 F.3d 314 (8th Cir. 1996), and Woodall v. United States, 72 F.3d 77 (8th Cir. 1995), are inapposite. . In Sanabria, which, like this case, involved a Bailey challenge to a § 924(c)(1) conviction raised in a § 2255 motion, the district court simply elected to resentence the defendant on his drug conviction. The Sanabria decision, while containing a thorough discussion of the retroactivity question, did not contain any discussion of that court’s authority to resentcnce the defendant. The Sanabria court did not address the double jeopardy issue (or the other issues) raised by this Court, and there is no indication of the time served by the defendant on his underlying drug sentence in that case. Thus, a meaningful determination of that defendant’s legitimate expectation of finality in his drug related sentence is not possible. For these reasons, the Court finds the Sanabria decision unpersuasive as it pertains to the resentencing issue. . ”[N]or" }, { "docid": "20337802", "title": "", "text": "924(c)(1), “the Government must show active employment of the firearm.” Id. at -, 116 S.Ct. at 506. Thus, “liability attaches only to cases of actual use” of a firearm, id. at -, 116 S.Ct. at 507, a standard that “includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.” Id. This construction of the “use” prong of section 924(c)(1) resolved a split in the circuits, see id. at -, 116 S.Ct. at 504-07 (citing representative cases), and, in the bargain, abrogated earlier decisions of this court that permitted conviction under a more inclusive definition of “use.” See, e.g., United States v. McFadden, 13 F.3d 463, 465 (1st Cir.1994) (holding that evidence of the presence of a gun under a mattress, with cash, near drugs, sufficed to. show “use”). Consequently, we acknowledge that McFadden and its siblings are no longer good law. Bailey is directly on point here. At oral argument, the government confessed error, candidly admitting that its evidence was insufficient to show “use” under the Bailey standard. Because our assessment of the record conduces to the same conclusion, we reverse the appellant’s conviction under 18 U.S.C. § 924(c) and direct, the district court to enter judgment in Valle’s favor on that count. V. CONCLUSION To recapitulate, we affirm the appellant’s conviction on the drug trafficking charge and reverse his conviction on the firearms charge. Since it is conceivable that our disposition of the latter count might affect the sentencing calculus in regard to the former count, we honor counsels’ joint request and remand to the district court for possible reconsideration of the sentence originally imposed on the drug trafficking count. See generally United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc) (discussing, in a pre-Guidelines ease, the district court’s “authority to reshape a sentence when multiple convictions gamer mixed reviews on appeal — some affirmed, some reversed”), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989). We need go no further. We intimate no view as to whether the district court should undertake to reconsider the sentence" }, { "docid": "9957129", "title": "", "text": "the criminal. United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 238, 107 L.Ed.2d 185 (1989); see also U.S. v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996) (upholding resentencing where two-level enhancement under § 2Dl.l(b)(l) was applied after the 924(c) count was vacated, because the sentences for those convictions were interdependent). When a defendant is charged and convicted of a violation of 18 U.S.C. § 924(c), a sentencing court is barred from applying the two-level enhancement under § 2Dl.l(b)(l), because of the Double Jeopardy Clause. See, e.g., United States v. Harris, 959 F.2d 246, 266-67 (D.C.Cir.), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992); Merritt, 930 F.Supp. at 1111 (citing U.S.S.G. § 2K2.4, Background). Absent a 924(c) count, however, Section 2Dl.l(b)(l) provides for a two-level increase “[i]f a dangerous weapon (including a firearm) was possessed.” The two-level enhancement is inextricably linked to, and is interdependent upon, the applicability of the 924(c) count. Although the Court has the authority to recalculate a defendant’s sentence on multiple convictions when those convictions are part of an overall sentencing package, a new sentence may be limited by the Due Process or Double Jeopardy Clauses, based upon the individual facts of each case. The Double Jeopardy Clause prohibits multiple punishments for the same offense and prohibits a court from increasing a sentence already imposed, if such resentencing would undermine a prisoner’s legitimate expectation in finality. United States v. Fogel, 829 F.2d 77, 87-89 (D.C.Cir.1987). The Double Jeopardy Clause guarantees that the defendant should be free from living in a continuing state of uncertainty as to whether his sentence will be increased. Id. at 88. A prisoner has a legitimate expectation of finality “unless he is or should be aware at sentencing that the sentence may permissibly be increased.” Id. at 87. Similarly, the Due Process clause prohibits enhancing a defendant’s sentence after he has served so- much of it that his expectations have crystallized. See Merritt, 930 F.Supp. at 1115 (citing United States v. Lundien, 769 F.2d 981, 987 (4th Cir.1985), cert. denied," }, { "docid": "7500846", "title": "", "text": "increasing his sentence on those counts. For a number of reasons that will be discussed below (none of which have been adequately addressed by the Government), the Court concludes that it would be improper to resentence defendant on those counts. 1. Double Jeopardy None of the cases cited by the Government address the double jeopardy issue which, in the Court’s view, arises under the facts of this case. In this case, defendant has already served the previously imposed sentence for his Drug-Related Convictions, and that sentence has not been placed directly in issue in this proceeding (which involves a collateral attack and not a direct appeal). The Court does not believe, in this § 2255 proceeding, that it may now reconsider defendant’s original sentence on the drug-related counts. Contra Sanabria v. United States, supra, 916 F.Supp. at 114-15. Simply put, the Court concludes that it may not impose an additional penalty for those violations after the original sentence imposed thereon has been fully served. To do so in this context would, in the Court’s view, be violative of the Double Jeopardy Clause. The Court recognizes that, under the “sentence package” rule, a sentencing court can modify the sentence imposed upon the individual counts of a multi-count conviction where the defendant has succeeded in challenging less than all of those convictions on direct appeal. United States v. Pimienta-Redondo, supra, 874 F.2d at 16; United States v. Shue, 825 F.2d 1111, 1114-15 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987); United States v. Rosen, 764 F.2d 763, 766-67 (11th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); see also United States v. McKnight, 17 F.3d 1139, 1144-46 n. 8 (8th Cir.) (opinion of Lay, J., not joined by Magill & Hansen, JJ.), cert. denied, — U.S.-, 115 S.Ct. 275,130 L.Ed.2d 192 (1994). However, the Double Jeopardy Clause prevents the sentencing court from doing so once the defendant has developed a legitimate “expectation of finality in the original sentence” imposed on his unsuccessfully appealed, or non-appealed, convictions. United States v. DiFrancesco, 449" }, { "docid": "12539740", "title": "", "text": "we cannot say that the denial of the motion for a new trial in any way constituted a miscarriage of justice. Thus, we hold that the district court did not abuse its discretion when it denied defendant’s motion for a new trial. II. The Sentencing Hearing A. The Due Process Claim After this court reversed the conspiracy conviction of Soto-Alvarez in his prior appeal, the district court resentenced appellant to 25 years and a fine of $50,000, the imprisonment to run consecutively to the imprisonment imposed in the 1985 case. In this resentence the terms of imprisonment of counts 2 and 3 are to run consecutive to each other, and the terms for counts 4 and 5 are to run consecutive to each other, but concurrent to the ones in counts 2 and 3. Defendant submits that the district court, in resentencing defendant, improperly increased his sentence after it was legally imposed and affirmed by the Court of Appeals. According to defendant the court should have simply taken away the sentence for count one, which would have left defendant with a total sentence of 15 years. Instead the district court restructured the original sentence. Defendant argues that this action on the part of the court, coupled with the fact that the court did not allow the defendant to finish a statement before issuing his sentence, amounts to vindictiveness, and therefore, pursuant to the Due Process Clause of the Fifth Amendment, as interpreted in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), the sentence imposed by the district court on remand from this court should be invalidated. This court firmly stated in Pimienta-Redondo that Pearce did not “prohibit resentencing, or even enhancement of sentence, after the accused has taken an appeal or otherwise taken advantage of some legal right.” Pimienta-Redondo, 874 F.2d at 12 (citations omitted). Rather, the presumption envisioned in Pearce arises “ ‘only in cases in which a reasonable likelihood of" }, { "docid": "2641581", "title": "", "text": "Amendment of the United States Constitution provides, in part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb-” U.S. Const, amend. V. This guarantee consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). It is the last of these protections that Merritt argues would be violated if he is resentenced on the drug-related counts. Merritt argues that because he has fully served the sentences on the drug-related counts, he has a legitimate expectation of finality with respect to those sentences such that resentencing would violate the due process clause. Merritt’s argument is based on the premise that the sentences on the drug counts were separate and distinct from the sentence on the § 924(c)(1) count. As stated above, however, Merritt did not receive three separate sentences but rather one aggregate sentence, which has not been fully served. Having imported the sentence package rule from the direct appeal context into the collateral attack context, the court has precluded Merritt’s double jeopardy argument. “Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan.... Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” Pimienta-Redondo, 874 F.2d at 16 (quoting United, States v. Shue, 825 F.2d 1111, 1115 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987)). See Mixon, 926 F.Supp. at 180-81 (rejecting double jeopardy argument); Alton, 928 F.Supp. at 887-88 (same). b. Due Process Merritt also argues that resentencing would violate his due process rights. As stated by the Fourth Circuit, “due process may ... be denied when a sentence is enhanced after the defendant has served so much of his sentence that" }, { "docid": "21029205", "title": "", "text": "or resentence him or grant a new trial or correct the sentence as may appear appropriate. 28 U.S.C. § 2255 (emphasis added). This grant of power to “correct the sentence as may appear appropriate” resolves the jurisdictional issue against Rodriguez. In this, we agree with the Fourth Circuit’s decision in United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir.1997) and the Seventh Circuit’s decision in United States v. Binford, 108 F.3d 723, 728-29 (7th Cir.1997). This still leaves the question of when it is “appropriate” to “correct the sentence.” In United States v. Smith, 103 F.3d 531 (7th Cir.1996), the Seventh Circuit ruled in favor of the exercise of jurisdiction to correct the remaining drug trafficking sentence where a prisoner, on a motion under § 2255, succeeded in vacating his mandatory consecutive five-year § 924(c) sentence. The Seventh Circuit found it “appropriate” to correct the sentence, because “[i]f a multicount sen tence is a package ... then severing part of the total sentence usually will unbundle it.” Id. at 534. The Seventh Circuit further noted, and we agree, that the question of the “appropriate” exercise of that jurisdiction cannot turn entirely on older conceptions of “sentencing packages” but must consider the effect of the Sentencing Guidelines. See id. at 534-35. “The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes.” Burns v. United States, 501 U.S. 129, 132, 111 S.Ct. 2182, 2184, 115 L.Ed.2d 123 (1991). We also agree with the Seventh Circuit’s conclusion that, while the Guidelines have altered the idea of the sentencing package, they have not eliminated the concept. Smith, 103 F.3d. at 534. In a pre-Guidelines case, this court both adopted the concept of the sentencing package and suggested some limits to its applicability. In United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989) (en banc), the defendants received consecutive sentences for convictions on two counts of drug trafficking. On appeal, this court ruled that the two counts of conviction actually constituted a single offense, reversed the defendants’ convictions on one of the counts, and remanded" }, { "docid": "7500845", "title": "", "text": "U.S.S.G. § 2Dl.l(b)(l) (1987). This adjustment “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, Application Note 3 (1987). “The defendant need not have had personal possession, or even actual knowledge of the weapon’s presence; the enhancement is required so long as the possession of the firearm was reasonably foreseeable to the defendant.” United States v. Stevens, 985 F.2d 1175, 1188 (2nd Cir.1993) (internal quotation marks omitted). The facts presented to the Court at the time of sentencing clearly would have warranted such an enhancement. However, in defendant’s case the enhancement was not imposed because he was charged and convicted under section 924(c)(1), and to have done so would have been “double counting.” See U.S.S.G. § 2K2.4, Application note 2 (1987); United States v. Howard, 998 F.2d 42, 48 (2nd Cir.1993). The Government cites several cases in support of its position that the Court should now resentence defendant on his Drug-Related Convictions by adding this two-point sentence enhancement, and hence increasing his sentence on those counts. For a number of reasons that will be discussed below (none of which have been adequately addressed by the Government), the Court concludes that it would be improper to resentence defendant on those counts. 1. Double Jeopardy None of the cases cited by the Government address the double jeopardy issue which, in the Court’s view, arises under the facts of this case. In this case, defendant has already served the previously imposed sentence for his Drug-Related Convictions, and that sentence has not been placed directly in issue in this proceeding (which involves a collateral attack and not a direct appeal). The Court does not believe, in this § 2255 proceeding, that it may now reconsider defendant’s original sentence on the drug-related counts. Contra Sanabria v. United States, supra, 916 F.Supp. at 114-15. Simply put, the Court concludes that it may not impose an additional penalty for those violations after the original sentence imposed thereon has been fully served. To do so in this context would, in the Court’s view," }, { "docid": "19853151", "title": "", "text": "fact that Ray had already begun a transition program designed to ease his progression from prison to civilian life. Any greater sentence would have unduly disrupted that transition process. Accordingly, Ray was resentenced principally to 88 months in prison (less time served for pre- and post-trial detention and good-time credit), to be followed by a four-year term of supervised release. . The gun bump was originally precluded by the now-invalid § 924(c) conviction. See United States v. Harris, 959 F.2d 246, 266 (D.C.Cir. 1992). . Ray also noted that he had begun participation in a transition program designed to ease his progression from prison to civilian life. . The other courts that have addressed this issue have reached the same conclusion, albeit using slightly different terminology. The First and Seventh Circuits, starting from the assumption that a separate sentence is imposed on each count of conviction, have stated that where the \"sentences on individual counts are interdependent,\" they form a single \"sentencing package.” United. States v. Shite, 825 F.2d 1111, 1114 (7th Cir.1987); see also United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989).- The term \"sentencing package,” however, is not to be found in any statute or Federal Rule of Criminal Procedure. Therefore, a more precise formulation might be that where the \"sanctions” on individual counts are interdependent, they form a single \"sentence.” In any event, the legal rule attempting to be conveyed is the same — namely, that where a sentencing scheme is based on multiple counts of conviction, the entire scheme should be viewed as a whole and not as an amalgam of severable, discrete parts. . There may be situations in which the discharge of the defendant is appropriate, such as where he has already served his entire original term of imprisonment. See Warner v. United States, 926 F.Supp. 1387 (E.D.Ark.1996). . In terms of comparison, if Ray were being resentenced after having served only a few months of his original term of imprisonment, he might not have received a downward departure at" }, { "docid": "23635114", "title": "", "text": "barrier, the district court had no jurisdiction to re-sentence him on Count 1. Where a prisoner’s sentence is shown to be illegal, 28 U.S.C. § 2255 confers upon the court the remedial authority to “set aside or correct the sentence.” 28 U.S.C. § 2255 (emphasis added). The scope of the court’s authority to resentence depends on what is meant by the word “sentence.” If “sentence” is read narrowly to refer to the specific term of imprisonment associated with a single count of conviction, a § 2255 motion that successfully attacks a § 924(c) conviction would confer jurisdiction only over the sentence associated with that conviction and nothing else. On the other hand, if “sentence” is construed more broadly as referring to an aggregate, indivisible term of imprisonment, the district court would have jurisdiction over the sentence as to all counts of conviction. This Court, the first appellate court to address the issue, recently endorsed the latter interpretation. In United States v. Smith, 103 F.3d 531 (7th Cir.1996), we concluded that, in a § 2255 proceeding, the district court has the authority to restructure a defendant’s entire sentence even-when the prisoner’s petition attacks the validity of just one of the counts of conviction. Central to the decision in Smith was the “sentencing package” concept. A sentencing package is “the bottom line, the total number of years (or under the guidelines, months) which effectuates a sentencing plan.” Id. at 533. The image of the package reflects the likelihood that in sentencing a defendant who is convicted of more than one count of a multicount indictment, the district judge imposes an overall punishment which takes into account the nature of the crime, certain characteristics of the criminal, and the interdependence of the individual counts. United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987); see also United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989). As will happen with any type of package, a sentencing package may become" }, { "docid": "21029206", "title": "", "text": "noted, and we agree, that the question of the “appropriate” exercise of that jurisdiction cannot turn entirely on older conceptions of “sentencing packages” but must consider the effect of the Sentencing Guidelines. See id. at 534-35. “The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes.” Burns v. United States, 501 U.S. 129, 132, 111 S.Ct. 2182, 2184, 115 L.Ed.2d 123 (1991). We also agree with the Seventh Circuit’s conclusion that, while the Guidelines have altered the idea of the sentencing package, they have not eliminated the concept. Smith, 103 F.3d. at 534. In a pre-Guidelines case, this court both adopted the concept of the sentencing package and suggested some limits to its applicability. In United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989) (en banc), the defendants received consecutive sentences for convictions on two counts of drug trafficking. On appeal, this court ruled that the two counts of conviction actually constituted a single offense, reversed the defendants’ convictions on one of the counts, and remanded for resentencing on the second. Id. at 11-12. The district court then resentenced the defendants on the remaining count to a term as long as the combined total of the prior, consecutive sentences on both counts. Id. at 12. Defendants again appealed. The en banc court rejected defendants’ double jeopardy and due process challenges to the resentencing, holding that: [a]fter an appellate court unwraps the [sentencing] package and removes one or more charges from its confines, the sentencing judge, herself, is in the best position to assess the effect of the withdrawal and to redefine the package’s size and shape____ Id. at 14. In light of the concurring opinion of then-Judge Breyer and Judge Campbell, Pimienta-Redondo’s “sentencing package” holding should be confined to situations where the same basic course of conduct underlies both the vacated count and the count on which the conviction is affirmed, and that basic conduct determines the sentence. Id. at 17 (Breyer, J., concurring). In this case, the Guidelines establish a similar relationship of interdependence between the vacated count of conviction," }, { "docid": "3996664", "title": "", "text": "agreement. Further, these courts reason that if the sentence is later set aside, he cannot be tried anew for the crimes that were initially compromised because he did not breach the plea agreement; the agreement was set aside for reasons beyond his control. This reasoning is flawed in a number of particulars. First, setting aside his plea and the resulting conviction is not beyond Barron’s control because he must first affirmatively seek to have the conviction and sentence set aside. He has done so pursuant to 28 U.S.C. § 2255. Second, and more to the point, the basis for the bargain between the government and Barron was not Barron appealing in court on a particular day and engaging in a ritualistic dialogue. See Fed.R.Crim.P. 11. Instead, the basis for the bargain was an agreement regarding the charges to which Barron would plead and the amount of time Barron would be required to serve. In the instant case, the sentence for violation of § 924(c) was a mandatory consecutive sentence of five years. It is only by serving that consecutive five-year sentence that Barron could be deemed to have fully performed his obligations under that part of the plea agreement. By attacking a key component in the sentencing plan envisioned by the plea agreement, Barron is, in effect, attacking the plea agreement itself. See United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.) (rejecting due process and double jeopardy challenges to resentencing on Count II after remand where sentence on Count I was vacated on appeal and eventual sentence for Count II was equal to former sentence for both Count I and Count II), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989); accord United States v. Bay, 820 F.2d 1511, 1513-14 (9th Cir.1987) (recognizing that sentence imposed for multiple counts is a composite which must be revisited as a totality if one or more but less than all components are eliminated on appeal). The confusion in the cases cited by Barron may be traceable to the fact that where two parties rescind a contract, each is entitled" } ]

[ { "docid": "22660848", "title": "", "text": "justify collateral relief under [28 U. S. C.] § 2255.” Davis v. United States, 417 U. S. 333, 346-347 (1974). II The Government charges petitioner with “procedural default” because he did not challenge his guilty plea on direct appeal. The Court accepts this argument and therefore places the burden on petitioner to demonstrate either “cause and prejudice” or “actual innocence.” See ante, at 622. Yet the Court cites no authority for its conclusion that “even the voluntariness and intelligence of a guilty plea can he attacked on collateral review only if first challenged on direct review.” Ante, at 621. Moreover, the primary case upon which the Government relies, United States v. Timmreck, 441 U. S. 780 (1979), actually supports the contrary proposition: that a constitutionally invalid guilty plea may be set aside on collateral attack whether or not it was challenged on appeal. Several years before we decided Timmreck, the Court had held that it is reversible error for a trial judge to accept a guilty plea without following the procedures dictated by Rule 11 of the Federal Rules of Criminal Procedure. McCarthy v. United States, 394 U. S. 459 (1969). The question in Timmreck was whether such an error was sufficiently serious to support a collateral attack under 28 U. S. C. §2255. Because the error was neither jurisdictional nor constitutional, we held that collateral relief was unavailable. If we had thought that the failure to challenge the constitutionality of a guilty plea on direct appeal amounted to procedural default, there would have been no need in Timmreck to rely on the critical difference between reversible error and the more fundamental kind of error that can be corrected on collateral review. The opinion makes it clear that an ordinary Rule 11 violation must be challenged on appeal; the only cri terion for collateral review that it mentions is that the error must be jurisdictional or constitutional. Decisions of this Court that do not involve guilty pleas are not conti’olling. For example, in United States v. Frady, 456 U. S. 152 (1982), two of the Court’s reasons for dismissing the" } ]

[ { "docid": "2174065", "title": "", "text": "had SARINA AMIEL been put on the witness stand, could have been cleared up. The attorneys for co-defendants did not want PETITIONER to testify but, because the co-defendant paid for PETITIONER’S attorney, PETITIONER’S best interest was not brought forth. The district court summarily denied appellant’s motion. We granted appellant’s ensuing certifícate of appealability on the issue of whether the district' court erred in denying her motion without first holding a hearing on the ineffective assistance claim. We denied a certificate as to the other grounds for relief asserted in her Section 2255 motion. DISCUSSION Section 2255 provides, in pertinent part, that “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law.” 28 U.S.C. § 2255. We agree with appellant that she was entitled to a hearing on her ineffective assistance claim. We noté at the outset that appellant’s claim is not proeedurally barred. A defendant is generally permitted to raise an ineffective assistance claim in a collateral attack, even when the claim was not raised on direct appeal. See Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) (“[I]n most cases there is good reason to allow a defendant to make ineffective assistance claims on collateral attack even if those claims were not brought on direct appeal.”). In Billy-Eko, we established the following exception to this general rule: absent a showing of cause for the procedural default and actual prejudice, a defendant may not raise an ineffective assistance claim for the first time on collateral attack if the defendant had new counsel on direct appeal and the claim is based solely on the record developed at trial. See id. at 115-16; see also id. at 113-14 (“[W]here a petitioner does not bring a claim on direct appeal, he is barred from raising [it] in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom.”). Appellant was represented" }, { "docid": "23266015", "title": "", "text": "counsel at trial and on appeal, and that a number of errors in the proceedings denied him a fair trial. The district court denied Owens’ petition for a writ of habeas corpus on all grounds except one, which is not the subject of this appeal. II. Discussion A. Standard of Review Because Owens is in federal custody, his habeas corpus petition is controlled by 28 U.S.C. § 2255. Section 2255 provides that a prisoner may move to vacate his sentence upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. A significant bar on habeas corpus relief is imposed when a prisoner did not raise claims at trial or on direct review. In such cases, a court may hear those claims for the first time on habeas corpus review only if the petitioner has “cause” for having proeedurally defaulted his claims, and if the petitioner suffered “actual prejudice” from the errors of which he complains. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994). Once a prisoner requests relief under § 2255, a district court must grant an evidentiary hearing on the prisoner’s claims unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. If a district court holds an evidentiary hearing on the claim, we review its factual conclusions for clear error. Awon v. United States, 308 F.3d 133, 140 (1st Cir.2002). If a district court dismisses a § 2255 claim without holding an eviden-tiary hearing, we take as true the sworn allegations of fact set forth in the petition “unless those allegations are merely con-clusory, contradicted by the record, or inherently incredible.” Ellis v. United States, 313 F.3d 636, 641 (1st Cir.2002). Finally, we review a district" }, { "docid": "6186997", "title": "", "text": "sentence may be viewed as an application for writ of habeas corpus. 28 U.S.C. § 2255; Rules Governing § 2254 Cases in United States District Court, Rule 1, advisory committee's note. See United States v. Moland, 39 F.3d 1193 (10th Cir.1994) (unpublished disposition); United States v. Gaylor, 828 F.2d 253 (4th Cir. 1987). Self’s pro se motion initiated a separate civil action (No. 94-2722) in which Self collaterally attacks his prior state court convictions on grounds of constitutional infirmity. It will therefore be viewed as a federal habeas proceeding under 28 U.S.C. § 2255. See Ruark V. Solano, 928 F.2d 947, 949 (10th Cir. 1991) (pro se filings must be construed liberally). . Section 2255, in relevant part, provides: An application for a writ of habeas corpus ... [under] this section shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him.... . Section 16-5-402 provides a catch-all exception to the limitations periods it prescribes where the court hearing the collateral challenge finds the failure to seek relief within the applicable time period was. the result of \"justifiable excuse or excusable neglect.\" C.R.S. § 16 — 5—402(2)(d). . The government argues Self's motion is also barred under the Frady doctrine because Self failed to challenge the constitutionality of his state convictions at the state trial-court level or in a direct appeal and cannot show cause for this procedural default or actual prejudice resulting from the errors. Govt.'s Resp. at 7 (citing United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) and United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). The government’s reliance on Frady and its progeny is misplaced. Frady is' a waiver doctrine invoked when a federal defendant who has already appealed his federal conviction files a § 2255 motion raising an issue that should have been raised on appeal. Allen, 16 F.3d at 378 (citing United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992); United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993)" }, { "docid": "347697", "title": "", "text": "lacked jurisdiction over the Rule 35(b) motion, a complete miscarriage of justice would result. The error would not be one that would be washed out by the course of subsequent trial proceedings. Rather, it would wrongly subject an individual whom the trial court, exercising arguably lawful authority, released from any form of custody, to six and a half years of imprisonment or parole. This is precisely the type of error for which Congress created section 2255. B. Procedural Default As we have noted, Diggs did not appeal the district court’s vacatur of its earlier order granting his rule 35(b) motion. Although we have found no case law precisely on point, we have no doubt that, because Diggs could have appealed an original denial of his rule 35(b) motion for reduction of sentence, see United States v. Dansker, 581 F.2d 69 (3d Cir.1978), he could have appealed the vacatur. Hence, Diggs committed a “procedural default.” The question before us, therefore, is whether this procedural default bars Diggs from collateral relief. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), stands as a barrier to section 2255 movants asserting errors that could have been raised at trial or on appeal. In that case the Supreme Court extended the rule of Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which applies to motions by state prisoners under 28 U.S.C. § 2254, to motions by federal prisoners under 28 U.S.C. § 2255. Accordingly, the Court there held that, at least as to errors committed at trial for which a rule of criminal procedure required contemporaneous objection, the failure to make such contemporaneous objection and the failure to assert “plain error” on appeal would bar the assignment of such error as grounds for section 2255 relief, unless cause for the “procedural default” could be shown and unless “actual prejudice” to the defendant could be shown to have resulted. As we read it, Frady rested its use of a “cause and prejudice” standard on two factors. First, of course, was the public interest in the finality" }, { "docid": "6886271", "title": "", "text": "sentence to vacate, set aside or correct, the sentence. 28 U.S.C. § 2255. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving the grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). The usual and customary method of correcting trial errors is by appeal. Sunal v. Large, 332 U.S. 174, 177, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Where a constitutional error asserted by a defendant in a § 2255 motion was not raised at trial, sentencing, or on direct appeal, the defendant may have his claim reviewed under limited circumstances. He must, however, meet a two-part “cause and actual prejudice” test to obtain collateral relief. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Maybeck, 23 F.3d 888, 890 n. 1 (4th Cir.1994). Under that test, “to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 167-68, 102 S.Ct. 1584. This standard presents “a significantly higher hurdle than would exist on direct appeal.” Id. at 166, 102 S.Ct. 1584. Should a movant fail to demonstrate cause and prejudice, Supreme Court precedent nevertheless authorizes collateral review in a narrow class of cases, where the error involves a “‘fundamental defect which inherently results in a complete mis carriage of justice.’ ” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). However, this rule applies only in “a very narrow realm of cases where a constitutional violation may have resulted in the conviction of an innocent person.” Noble v. Barnett, 24 F.3d 582, 586 n. 5 (4th Cir.1994). However, the standard of review for an ineffective assistance of counsel claim in a § 2255 motion is different" }, { "docid": "22071307", "title": "", "text": "U.S.C. § 2253(c)(1)(B). The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 2253(a) and 2255. We review issues of statutory interpretation de novo. See, e.g., Stiver v. Meko, 130 F.3d 574, 577 (3d Cir.1997). II. Discussion A. Section 2255 provides in relevant part: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255. This provision creates a statute of limitations for federal defendants who attempt to collaterally attack their conviction and/or sentence pursuant to § 2255. See Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 619 n. 1 (3d Cir.1998) (holding that the one-year requirement for bringing a motion under § 2255 is a statute of limitations subject to equitable tolling, not a jurisdictional bar). It was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which was signed into law on April 24, 1996. In Burns v. Morton, 134 F.3d 109 (3d Cir.1998), we held that “ § 2255 motions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2255’s one-year period of limitation,” id. at 112, and we further held that, under the principles set forth in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a pro se prisoner’s §" }, { "docid": "9578364", "title": "", "text": "United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). In Gomez, the Supreme Court held section 636(b) does not authorize federal magistrates to conduct jury selection and voir dire in felony trials. The questions before this Court are (1) whether Rubio’s failure to raise the issue at trial or on direct appeal precludes his raising it for the first time in his section 2255 motion, and if he is not barred from raising the issue, (2) whether the Supreme Court’s decision in Gomez should be applied retroactively to his case. A. PROCEDURAL DEFAULT The United States Supreme Court spoke directly to the question of when an issue may be raised for the first time in a collateral proceeding under section 2255 in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Frady involved a collateral proceeding under section 2255 in which the petitioner challenged an erroneous jury instruction for the first time, contrary to the requirement in Rule 30 of the Federal Rules of Criminal Procedure that objections to jury instructions be raised before the jury retires. Id. at 162-63, 102 S.Ct. at 1591-92. In Frady, the Supreme Court held that “to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Id. at 166, 102 S.Ct. at 1593. The Court went on to determine that the proper standard was the “cause and actual prejudice” standard: “Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Id. at 167-68, 102 S.Ct. at 1594. Citing Frady, the Third Circuit panel in Felix v. Virgin Islands Government, 702 F.2d 54 (3d Cir.1983) (per curiam), declined to reach the merits of a section 2254 petition challenging the determination of petitioner’s competency to stand trial, the adequacy of jury instructions, sufficiency of the evidence, and improper statements by one of the jurors during trial because peti" }, { "docid": "16434304", "title": "", "text": "Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: Kendrick Cicero and Ian Thorne filed separate appeals presenting the same questions: Must a prisoner whose conviction became final before April 24, 1996— the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 — raise any challenge to his conviction or to his sentence, pursuant to 28 U.S.C. § 2255, within one year of the effective date of the Act? If so, is that time limitation subject to equitable tolling? And if it is, then is either appellant entitled to such tolling based upon the equity of his case? We hold first that a prisoner whose conviction became final prior to April 24, 1996 must have filed his § 2255 motion within one year of that date. Further, we hold that regardless whether this limitation is subject to equitable tolling — a question we need not decide today — the cases before us do not warrant such relief. I. Background Prior to the effective date of the AED-PA a prisoner could challenge his conviction or sentence as a violation of the Constitution of the United States by filing a motion under 28 U.S.C. § 2255 at almost any time. See Mickens v. United States, 148 F.3d 145, 146 (2d Cir.1998). As amended by that Act, paragraph six of § 2255 now limits the time in which a prisoner may bring such a motion as follows: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or" }, { "docid": "22081744", "title": "", "text": "that, pursuant to a federal habeas corpus petition, a district court may reopen and reduce a federal sentence once a federal prisoner has successfully attacked in state court a prior state conviction previously used in enhancing the federal sentence. See Walker, 198 F.3d at 813-14. But, unlike the facts in Walker, Farris’s original § 2255 motion was not dismissed without prejudice before he filed his challenge to his prior state conviction and his subsequent challenges to his sentence were not filed timely. See id. The AEDPA established a mandatory one-year “period of limitation” for § 2255 motions, which runs from the latest of the following events: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(1)-(4). Because Farris’s conviction became final when the Supreme Court denied certiorari in his direct appeal on 7 October 1996, he had one year from that date within which to file his § 2255 motion. See Washington v. United States, 243 F.3d 1299, 1300-01 (11th Cir.2001) (conviction final when Supreme Court de nies certiorari or issues a decision on the merits). Accordingly, Farris’s § 2255 motion filed on 31 October 1996 was timely filed. But his claims raised in his motions to resentence, reconsider, and amend, filed in December 1998 and in July 1999, were timely only if they related back to his original motion. Under Rule 12 of the Rules Governing § 2255 Proceedings, a district court may apply the Federal Rules of Civil Procedure in a lawful manner" }, { "docid": "22071306", "title": "", "text": "release on May 25, 1995. We affirmed the judgment of conviction on February 13, 1996. Kapral did not file a petition for a writ of certiorari in the United States Supreme Court. On April 29, 1997, Kapral filed a counseled motion under § 2255 in which he claimed that his prior counsel provided ineffective assistance and that the resulting plea was therefore not a knowing and intelligent one. The district court did not reach the merits of Kapral’s claims, however, as the court ruled that his motion was untimely filed. Under § 2255, a motion must be filed within one year of “the date on which the judgment of conviction becomes final.” The district court interpreted that language to mean that a defendant must file within one year of the date on which this court affirms the defendant’s conviction and sentence. Since Kapral filed his motion more than one year after we affirmed on direct review, the district court dismissed his motion with prejudice. We granted Kapral’s request for a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 2253(a) and 2255. We review issues of statutory interpretation de novo. See, e.g., Stiver v. Meko, 130 F.3d 574, 577 (3d Cir.1997). II. Discussion A. Section 2255 provides in relevant part: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims" }, { "docid": "9524742", "title": "", "text": "his claim by failing to raise it on direct review may only raise it collaterally if he can first demonstrate either cause and actual prejudice, or that he is actually innocent of the § 924(c) conviction and any “more serious charges” dismissed in the plea bargaining process. As noted above, the District Court then found that Lloyd’s petition to vacate his conviction was time-barred because it was filed more than one year from his date of conviction and the effective date of the AEDPA and that Lloyd’s Bailey claim was proeedurally defaulted in any event because Lloyd could prove neither (a) cause and actual prejudice nor (b) that he was actually innocent of both the § 924(c) conviction and the dismissed felon-in-possession charge, as required under Bousley. This appeal timely followed. Our appellate jurisdiction is pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we exercise plenary review of the District Court’s decision to deny Lloyd’s § 2255 motion. See United States v. Cleary, 46 F.3d 307, 309-10 (3d Cir.1995), cert. den’d, 516 U.S. 890, 116 S.Ct. 237, 133 L.Ed.2d 165 (1995). II. The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2255, which be came effective on April 24,1996, requires a defendant to file a § 2255 motion no more than one year after the latest of four specified events. It provides in relevant part: A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of - (1) the date on which the judgment of conviction becomes final; Hí % ‡ ‡ (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; * * * * * * The District Court concluded that subsection (3) did not apply because Bailey did not recognize a new right, but simply corrected a statutory interpretation. The District Court therefore held Lloyd’s motion to be time-barred because it was filed several years after Lloyd’s conviction became" }, { "docid": "4300390", "title": "", "text": "government to brief the issue of: (1) whether the Petitioner will have an opportunity to challenge his deportation, notwithstanding the fact that he was convicted of an aggravated felony; and (2) whether the instruction provided by the magistrate judge was an affirmative misrepresentation of the law, pursuant to United States v. Couto, 311 F.3d 179 (2d Cir.2002). II. DISCUSSION A. STANDARD OF REVIEW Title 28 U.S.C. § 2255 provides a post conviction remedy for federal prisoners similar to the historic writ of habeas corpus available to state prisoners that is now codified in § 2254. Pursuant to § 2255, a federal prisoner in custody “may move the court which imposed the sentence to vacate, set aside or correct the sentence” on the basis that it “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....” 28 U.S.C. § 2255. As stated by the Second Circuit, “because requests for habeas corpus relief are in tension with society’s strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Ciak v. United States, 59 F.3d 296, 301 (2d Cir.1995) (citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982)). As a result, prisoners seeking habeas corpus relief pursuant to § 2255 must show both a violation of their Constitutional rights and “substantial prejudice” or a “fundamental miscarriage of justice.” Id. at 301. B. PROCEDURAL DEFAULT “A motion under § 2255 is not a substitute for an appeal.” United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998). In § 2255 proceedings, the Supreme Court has recognized the rule of procedural default or “exhaustion” of federal remedies. Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). Generally, the rule bars the presentation of a claim through" }, { "docid": "20648248", "title": "", "text": "was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ...” See, 28 U.S.C. § 2255. A motion under § 2255 is not a substitute for direct appeal and presents a higher standards that a petitioner must clear to bring a claim. United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Once a defendant’s chance to appeal has been exhausted, there is a presumption that the conviction is fair and final. Id. As the Supreme Court explained in Frady, “[o]nce the defendant’s chance to appeal has been waived or exhausted ... we are entitled to presume he stands fairly and finally convicted, especially when, as here, he had already has a fair opportunity to present his federal claims to a federal forum.” Frady, 456 U.S. at 164, 102 S.Ct. 1584. Moreover, a § 2255 motion may not be used to relitigate an issue that was raised and considered on direct appeal without some highly extraordinary circumstance, such as an intervening change in the law. Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ ” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted); Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“Claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.”). Further, a petitioner may not re-litigate questions that were raised and considered on direct appeal in this circuit. Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1994) (“issues disposed of in a prior appeal will not be reviewed again by way of 28 U.S.C. 2255 motions,”) citing Dirring v." }, { "docid": "16876845", "title": "", "text": "court dismissed Metzger’s subsequent appeal upon agreement of the parties. United States v. Metzger, No. 90-5521 (4th Cir. Dec. 7, 1990). Metzger then filed an in forma paupeñs motion to vacate or set aside his conviction under 28 U.S.C. § 2255. He contended that he had received ineffective assistance of counsel and that he was wrongly subjected to prosecution under § 922(g)(1), because the civil rights revoked upon his conviction for the Michigan felony had been restored upon his release under the law of that state. 18 U.S.C. § 921(a)(20); United States v. Essick, 935 F.2d 28 (4th Cir.1991). The district court denied the motion after Metzger was released from prison and had begun his term of supervised release. United States v. Metzger, No. 90-00037-01-R (E.D.Va. Aug. 17, 1992). This appeal followed. II Metzger contends that his § 921(g) “conviction and punishment [were] for an act that the law does not make criminal.... There can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘presents] exceptional circumstances’ that justify collateral relief under § 2255.” Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). Before discussing that contention, we must determine the appropriate standard of review in light of Metzger’s waiver of direct appeal and the government’s failure to raise that waiver as a procedural bar to his § 2255 motion. Although 28 U.S.C. § 2254(b) conditions habeas relief upon state prisoners’ exhaustion of state direct appeal and collateral review remedies, § 2255 imposes no parallel requirement that federal prisoners pursue direct appeal, instead allowing such motions to be filed “at any time.” Nevertheless, the Supreme Court has held that the government’s “interest in the finality of its criminal judgments” warrants a stringent cause-and-prejudice standard of review for § 2255 movants who waive their right of direct appeal. United States v. Frady, 456 U.S. 152, 166, 167-68, 102 S.Ct. 1584, 1593, 1594, 71 L.Ed.2d 816 (1982). Here, the government failed to vindicate that interest. Instead of raising the issue of Metzger’s waiver of appeal, the" }, { "docid": "343250", "title": "", "text": "EDMONDSON, Circuit Judge: In this case appellant-petitioner, James Bradley Parks, appeals from the district court’s denial of a motion to vacate sentence pursuant to 28 U.S.C. section 2255. Because petitioner Parks does not meet the cause and prejudice standard applicable to issues raised in a section 2255 proceeding which were not raised on direct appeal, we affirm the district court’s denial of his motion. Petitioner was convicted by jury on four counts involving violations of federal laws on controlled substances and was sentenced to ten years in prison, to be followed by a special parole term of five years. Upon timely appeal by petitioner, the conviction was affirmed by this court. Petitioner then filed a Rule 35 motion for reduction of sentence which was denied by the district court. Petitioner next filed the section 2255 motion here at issue, asking that his sentence be vacated. The district court denied this motion, which denial petitioner now appeals. In his section 2255 motion, petitioner raises issues regarding sentencing which were not asserted on direct review. This obliges the court to determine whether the petitioner may raise these issues upon even a showing of “plain error” on the part of the lower court or whether petitioner must show cause and prejudice in order to raise these issues in a collateral attack on his sentence. In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the Supreme Court held that, to obtain collateral relief based on trial errors to which no objection was made at time of trial, a convicted defendant must show both cause excusing his failure to raise the issues at a proper earlier review stage and actual prejudice resulting from the errors. This showing, more stringent than the “plain error” standard, is necessary and proper to further “society’s legitimate interest in the finality of the judgment ... perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.” Frady, 456 U.S. at 164, 102 S.Ct. at 1592. This court has applied the “cause and prejudice” standard in" }, { "docid": "15868266", "title": "", "text": "trigger an evidentiary hearing on a 28 U.S.C. § 2255 right-to-testify claim. The court denied COA as to the other two claims made on appeal and declared that all other claims had been abandoned. DISCUSSION Standard of review We review the district court’s findings of fact in a § 2255 proceeding for clear error. United States v. Mimms, 43 F.3d 217, 220 (5th Cir.1995). Questions of law are reviewed de novo. United States v. Gipson, 985 F.2d 212, 214 (5th Cir.1993). The alleged denial of Willis’ right to testify It is undisputed that Willis did not raise, at trial or on direct appeal, the allegation that he was denied his right to testify on his own behalf. This issue is therefore being raised for the first time in the present § 2255 motion. Usually, after a conviction and exhaustion or waiver of any right to appeal, this Court is entitled to presume that the defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.1991). A defendant can challenge a final conviction, but only on issues of constitutional or jurisdictional magnitude. Shaid, 937 F.2d at 232 (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). The Supreme Court has stated that, in a § 2255 proceeding, “to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 167-68, 102 S.Ct. 1584; see also United States v. Kallestad, 236 F.3d 225, 227 (5th Cir.2000) (“A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result.”). Willis never raised the denial of right to testify issue on direct appeal and so it would appear that" }, { "docid": "23701826", "title": "", "text": "for a certificate of appeal-ability and on May 22, 1998, the district court granted the certificate of appealability but only as to the statute of limitations issue and denied it with respect to the other claims raised in his § 2255 motion. Accordingly, the only issue before the court is the issue of whether the defendant timely filed his § 2255 motion. Discussion On April 24, 1996, Section 105 of the Antiterrorism and Effective Death Penalty Act (AEDPA) took effect. That section amended 28 U.S.C. § 2255, establishing a one-year “period of limitation” for motions filed pursuant to § 2255, The one-year period runs from-the latest of the following: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255. However, this Court held in Goodman v. United States, 151 F.3d 1335, 1337-38 (11th Cir.1998), that federal prisoners whose conviction became final prior to April 24, 1996, would have one year from the enactment of § 105 of the AEDPA, or until April 23, 1997, in which to file their § 2255 motions. Akins’ conviction became final before April 24, 1996. Akins’ § 2255 motion, however, was filed well after the April 23, 1997, deadline. Therefore, his motion is untimely unless he is entitled to equitable tolling or he was prevented from timely filing his § 2255 motion by an unconstitutional impediment. A. Equitable Tolling This Court has previously held that the statute of limitations set forth in 28 U.S.C. § 2255, as amended, is subject" }, { "docid": "347690", "title": "", "text": "OPINION OF THE COURT BECKER, Circuit Judge. Federal Rule of Criminal Procedure 35(b) gives a district court the power to reduce a sentence it previously imposed upon a crim inal defendant; the rule also states, generally speaking, that this reduction must take place, if at all, within 120 days of a final decision upholding the conviction. In the case before us, which is an appeal from a district court denial of a motion for collateral relief under 28 U.S.C. § 2255, the district court, after waiting two and a half years, granted prisoner Alfred Diggs’ rule 35(b) motion, and then reversed itself, vacating its order on grounds that it had lost jurisdiction by virtue of the passage of time. Diggs claims this last act was error and appeals. There are three major issues before us. First, we must decide whether the errors asserted by Diggs are cognizable on section 2255 motions, that is, whether the alleged errors are of sufficient magnitude to warrant collateral relief under that section, see Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), and whether the failure of Diggs to assert the errors on a direct appeal precludes the section 2255 collateral attack, see United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). For the reasons explained below, we hold that the errors asserted by Diggs were of the requisite magnitude and that his failure to raise them on a prior appeal does not preclude his section 2255 action. See United States v. Baylin, 696 F.2d 1030 (3d Cir.1982). Second, having found section 2255 to have been properly invoked, we must determine whether the district court indeed erred when it ruled that it had lost jurisdiction over Diggs’ Rule 35(b) motion and was accordingly obligated to vacate its earlier decision granting that motion. Notwithstanding dictum in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), which arguably suggests a contrary conclusion, we hold that the district court had a “reasonable time” beyond the 120-day limit to decide Diggs’" }, { "docid": "23512001", "title": "", "text": "until Parks had been questioned in late February of 1990 that the government became aware of Murr’s cocaine venture extending into Kentucky. DISCUSSION Standard of Review “In reviewing the denial of a 28 U.S.C. § 2255 petition, this Court applies a de novo standard of review of the legal issues and will uphold the factual findings of the district court unless they are clearly erroneous.” Hilliard v. United States, 157 F.3d 444, 447 (6th Cir.1998). Where no evidentiary hearing is held, the district court’s denial of the motion will be upheld where “the files and records of the case conclusively establish that the prisoner is entitled to no relief.” 28 U.S.C. § 2255 (1994); Baker v. United States, 781 F.2d 85, 92 (6th Cir.1986). I. Double Jeopardy Petitioner first argues that his constitutional rights were violated because the government knew of the facts-underlying his subsequent conviction in the Eastern District of Kentucky before Petitioner was convicted in the Eastern District of Tennessee. We disagree. It is well-settled law that failure to raise an argument at trial or on direct appeal is waived on collateral review under § 2255, absent a showing of both cause and actual prejudice. United States v. Frady, 456 U.S. 152, 164-65, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In this case, Petitioner’s double jeopardy claim has been raised for the first time on collateral review. Petitioner did not present this issue at pretrial, at trial, or on direct appeal. Rather, on direct appeal, Petitioner argued only that his prosecution in the Eastern District of Kentucky violated his earlier plea agreement in the Eastern District of Tennessee. Petitioner makes no effort to show cause to excuse this procedural default, nor has he attempted to show that he suffered “actual prejudice” from the alleged error that would undermine the entire integrity of the trial, as required under Frady. Id. at 168-70, 102 S.Ct. 1584. Petitioner failed to meet the standards of Frady, he is therefore barred from raising his double jeopardy claim for the first time on collateral attack under § 2255. See, e.g., Napier v. United" }, { "docid": "11808862", "title": "", "text": "impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. The instant Petition seeks to vacate, set aside or correct the sentence claiming ineffective assistance of counsel in the following respects: (1) his counsel allegedly failed to move for a downward departure under Guidelines section 4A1.3 on the ground that the career offender designation overstated the seriousness of defendant’s criminal history, (Pet. Br. at 7-14), and (2) before defendant pled guilty he was allegedly told by his counsel that if he entered a guilty plea he would receive a ten-year sentence, and he was not told of possible career offender status. (Pet. Supp. Br. at 1). Petitioner has the burden of establishing each of the claims in the Petition. See United States v. Abbott, 975 F.Supp. 703, 705 (E.DJPa. 1997). B. Standard for Ineffective Assistance of Counsel Petitioner asserts each of his claims under the theory of ineffective assistance of counsel. A petitioner is barred from collaterally attacking his sentence pursuant to 28 U.S.C. § 2255 so far as that attack is based upon alleged errors that could have been, but were not, raised on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993). To avoid the resulting procedural bar, a petitioner generally must prove “both (1) ‘cause’ excusing his ... procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 168, 102 S.Ct. 1584. A petitioner need not, however, demonstrate cause and prejudice when he raises a claim of ineffective assistance of counsel initially in a § 2255 motion. The Third Circuit has clearly stated its preference that such claims be addressed in the first instance by the district court under a § 2255 motion. See, e.g., United States v. Tobin, 155 F.3d 636, 643 (3d Cir.1998); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994); United States v. DeRewal, 10 F.3d 100, 103-04" } ]

[ { "docid": "16918752", "title": "", "text": "F.3d 1277, n. 11 (9th Cir.2009) (internal quotation marks omitted). We exercise that discretion here. The Washington Plaintiffs’ “identical factual predicate” argument is a mixed question of law and fact. They argue both that a settlement must be based on the “identical factual predicate” as a subsequent claim to preclude that claim, and that the Benney claims and the B & O Tax Surcharge claims do not share an identical factual predicate. We are persuaded to consider this argument because it is conceptually related to the arguments raised in response to Sprint’s motion for summary judgment in which Sprint first put forward the theory that the Benney Settlement released the Washington Plaintiffs’ claims, and the pertinent factual record regarding the basis for the claims in both cases is fully developed. A settlement agreement may preclude a party from bringing a related claim in the future “even though the claim was not presented and might not have been presentable in the class action,” but only where the released claim is “based on the identical factual predicate as that underlying the claims in the settled class action.” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir.2008); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir.1992), quoted in Howard, 208 F.3d at 747. Thus, we have held that federal district courts properly released claims not alleged in the underlying complaint where those claims depended on the same set of facts as the claims that gave rise to the settlement. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 749 (9th Cir.2006) (affirming dismissal of a class action against credit card companies predicated on the same price-fixing predicate and injury as claims settled in an earlier class action, even though the subsequent suit “posit[ed] a different theory of anti-competitive conduct”); Class Plaintiffs, 955 F.2d at 1286-91 (affirming approval of a settlement relating to certain bond defaults that released claims by an identical class of plaintiffs in a pending case that related to the same bond defaults). We applied the same reasoning to hold that a state court’s" } ]

[ { "docid": "22110902", "title": "", "text": "43 (2d Cir.1983); Fed.R.Civ.P. 23(e). There are no rigid rules to determine whether a settlement notice to the class satisfies constitutional or Rule 23(e) requirements; the settlement notice must “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.” Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir.1982) (internal quotation marks and brackets omitted). Notice is “adequate if it may be understood by the average class member.” 4 Newbeeg § 11:53, at 167. A. Pasta Bella Received Adequate Notice Since the class notice did not name the banks as parties and the settlement notice did not specifically inform class members that the Reyn’s claims would be included in the Settlement, Pasta Bella argues that it was denied due process because class members were not given the opportunity to opt out after the settlement notice was issued. Although Pasta Bella forfeited this contention by failing to preserve it at the district court, see Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 142 (2d Cir.2000), we note that even if it had been preserved, the argument cannot prevail. The Ninth Circuit’s decision in Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir.1992), is directly on point. That case involved class action claims arising from the default of $2.25 billion in bonds issued to finance power plants in the State of Washington. Id. at 1273. Pursuant to a settlement between the parties, the State obtained a release in that action even though it was not a party and was not mentioned in the notice of pendency. Id. at 1288, 1290-91. On appeal, the Ninth Circuit affirmed the district court’s approval of settlement by determining that a federal court may release a claim “based on the identical factual predicate as that underlying the claims in the settled class action even though the -claim was not presented and might not have been presentable in the class action.” Id. at 1287 (quoting TBK, 675 F.2d at 460 (emphasis added in Class Plaintiffs)). Since the parties" }, { "docid": "22446087", "title": "", "text": "to preclusive effect.” (citation omitted)). Seven years into the Wal-Mart I litigation, the district court reviewed the claims that are now before us and found that they shared an identical factual predicate with the claims asserted in Wal-Mart. See Wal-Mart I, 297 F.Supp.2d at 513-14. Given the Wal-Mart court’s long familiarity with the litigation, it is at least as well-equipped as we are to determine the scope of the release. Moreover, Plaintiffs had a full opportunity to be heard on this issue by the Wal-Mart courts. They chose not to press this issue on appeal to the Second Circuit. See Wal-Mart II, 396 F.3d at 107 n. 14 (noting that Plaintiffs abandoned the issue). Since all of the elements of issue preclusion are met, we hold that Plaintiffs are collaterally estopped from relitigating the scope of the release here. B. Even if issue preclusion were not applicable, we would nonetheless find that Plaintiffs’ claims were released. “The weight of authority holds that a federal court may release not only those claims alleged in the complaint, but also a claim ‘based on the identical factual predicate as that underlying the claims in the settled class action....’” Class Plaintiffs, 955 F.2d at 1287-89 (quoting TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir.1982)). A class settlement may also release factually related claims against parties not named as defendants, such as the Banks here. See id. Thus, the Wal-Mart release encompasses Plaintiffs’ claims if they arise from an identical factual predicate as the claims asserted by the Wal-Mart class. As discussed above, Plaintiffs’ claim is that Defendants’ uniform interchange rates caused the class members to pay excessive merchant-discount fees for the use of credit and debit cards. They argue that the uniform interchange rates “set a floor” under the merchant-discount rates, thereby keeping them above the price that would obtain in a competitive market. In the operative class complaint in Wal-Mart, the plaintiffs sued Visa and MasterCard on two theories of antitrust liability. First, the Wal-Mart plaintiffs claimed Visa and MasterCard’s “honor-all-cards” rule, which required merchants to accept Visa" }, { "docid": "16110002", "title": "", "text": "only a nonjurisdictional precondition to filing a claim. Reed Elsevier, Inc. v. Muchnick,-U.S.-, 130 S.Ct. 1237, 1247, 176 L.Ed.2d 18 (2010). On remand, we ordered the parties to file letter briefs addressing any supplemental authority relevant to the merits, to which we now turn. DISCUSSION Objectors appeal several aspects of the district court’s decision. They argue (1) that the Settlement impermissibly releases claims beyond the factual predicate of the case; (2) that class certification was improper because subgroups within the class have conflicting interests; and (3) that the district court erred procedurally in reaching its decision. Although we reject the objections to the release provision, we agree with objectors that not all class members were adequately represented. We decline to reach the procedural issues, which are moot in light of our class certification holding. I. Release of Claims The Settlement prohibits claimants from barring future use of the Subject Works, including the selling and licensing of the works to third parties, unless the class member either opts out of the Settlement altogether or exercises his right to bar future use. Objectors assert that this “ ‘irrevocable, worldwide, and continuing’ license” impermissibly releases claims that' are not based on the same factual predicate underlying the claims in this class action. “Plaintiffs in a class action may release claims that were or could have been pled in exchange for settlement relief.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 106 (2d Cir.2005). Parties often reach broad settlement agreements encompassing claims not pre sented in the complaint in order to achieve comprehensive settlement of class actions, particularly when a defendant’s ability to limit his future liability is an important factor in his willingness to settle. See id.; see also TBK Partners,. Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir. 1982). Any released claims not presented directly in the complaint, however, must be “based on the identical factual predicate as that underlying the claims in the settled class action.” TBK Partners, 675 F.2d at 460. Objectors argue that releasing future claims arising from licensing the Subject Works to third-party" }, { "docid": "10696807", "title": "", "text": "well-settled that in order to achieve a comprehensive settlement ... a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been pres entable in the class action.”). Because the compensation discrimination claim satisfies the identical factual predicate standard for settlement, Plaintiffs argue, it necessarily satisfies the same conduct, transaction or occurrence standard for relation back. Plaintiffs’ argument assumes that the compensation discrimination claim would have been released by the Consent Decree if it had been finally approved. While Boeing may have drafted the settlement agreement to include as broad a release as possible, the release would have only been enforceable as to subsequent “claims relying upon a legal theory different from that relied upon in the class action complaint, but depending upon the same set of facts.” 4 NewbeRG on Class ActioNS § 12:15. In any ease, the scope of the Consent Decree is not relevant to whether the compensation discrimination claim relates back to Original and First Amended Complaints because it is clear from the pleadings themselves that the compensation discrimination claim included in the Second Amended Complaint does not arise from the same “conduct, transaction, or occurrence” alleged in the Original and First Amended Complaints. Finally, by its terms, the Consent Decree is inadmissible as evidence “regarding any ... issue or subject” because it never received final judicial approval. Plaintiffs’ compensation discrimination claim, alleged for the first time in the Second Amended Complaint, does not relate back to the Original and First Amended Complaint. C Plaintiffs next contend that Boeing should be judicially estopped to argue that Plaintiffs did not allege compensation discrimination in the Original and First Amended Complaints because such a position is contrary to the position Boeing took in the Consent Decree. The district court held that “nothing in the Consent Decree judicially estops Boeing from obtaining partial summary judgment on the salary compensation claim.” We review this holding for abuse of discretion. See Broussard v. Univ. of Cal.," }, { "docid": "16110003", "title": "", "text": "right to bar future use. Objectors assert that this “ ‘irrevocable, worldwide, and continuing’ license” impermissibly releases claims that' are not based on the same factual predicate underlying the claims in this class action. “Plaintiffs in a class action may release claims that were or could have been pled in exchange for settlement relief.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 106 (2d Cir.2005). Parties often reach broad settlement agreements encompassing claims not pre sented in the complaint in order to achieve comprehensive settlement of class actions, particularly when a defendant’s ability to limit his future liability is an important factor in his willingness to settle. See id.; see also TBK Partners,. Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir. 1982). Any released claims not presented directly in the complaint, however, must be “based on the identical factual predicate as that underlying the claims in the settled class action.” TBK Partners, 675 F.2d at 460. Objectors argue that releasing future claims arising from licensing the Subject Works to third-party sublicensees is impermissible in two ways. First, future infringements are distinct harms giving rise to independent claims of relief, with factual predicates that are different from authors’ past infringement claims. Second, future claims may be against a sublicensee who is not a party to the Settlement, which means that infringement could not be grounded in the factual predicate of this case. We find both of these, arguments .unavailing because future use of the Subject Works, whether by publishers or by sublicensees, falls squarely within the factual predicate underlying authors’ claims. Objectors’ first argument fails to recognize that the consolidated complaint seeks injunctive relief for future uses, and therefore contemplates these alleged future injuries. Put another way, a trial of this case would determine whether it is permissible for publishers to continue to sell and license the works. See Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 17-18 (2d Cir.1981) (assessing permissibility of release by looking to possible remedies if that case had proceeded to trial). Accordingly, regardless of whether future infringements would" }, { "docid": "22110903", "title": "", "text": "Inc., 238 F.3d 133, 142 (2d Cir.2000), we note that even if it had been preserved, the argument cannot prevail. The Ninth Circuit’s decision in Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir.1992), is directly on point. That case involved class action claims arising from the default of $2.25 billion in bonds issued to finance power plants in the State of Washington. Id. at 1273. Pursuant to a settlement between the parties, the State obtained a release in that action even though it was not a party and was not mentioned in the notice of pendency. Id. at 1288, 1290-91. On appeal, the Ninth Circuit affirmed the district court’s approval of settlement by determining that a federal court may release a claim “based on the identical factual predicate as that underlying the claims in the settled class action even though the -claim was not presented and might not have been presentable in the class action.” Id. at 1287 (quoting TBK, 675 F.2d at 460 (emphasis added in Class Plaintiffs)). Since the parties had been given notice of the action, the opportunity to opt out, notice of the proposed settlement, and the opportunity to object, the court held that it was not required to grant those who objected to the proposed settlement a second opportunity to opt out. Id. at 1289. Here, although the member banks were not named as defendants, the complaint described “[ajpproximately 4,400 banks that have issued Visa and/or MasterCard credit cards and also issued Visa Check and/or MasterMoney debit cards” as eo-conspirators.2d Am. Compl. ¶ 32. The notice of pendency, which incorporated the allegations in the complaint, alleged a conspiracy between Visa, MasterCard, and “their member banks.” Notice of Pen-dency ¶ 3. Attempting to distinguish the Reyn’s claims from those in the instant action, Pasta Bella’s amended complaint in Reyn’s states, “Plaintiffs do not contest in this action, as averred in other litigation, any tying arrangement, of the VISA and MASTERCARD debit charges with other charges.” Reyn’s 1st Am. Compl. ¶ 11. Yet, Pasta Bella’s attempt to distinguish the claims in Reyn’s from the" }, { "docid": "8697409", "title": "", "text": "preclusion law because under federal preclusion any cause of action that could have been brought between the parties referenced in the Settled Claims would not be limited as it is under New York preclusion law. As discussed above, Defendants argue that since the Section 16(b) Action could have been brought in a federal court and the bankruptcy court is a federal court, the broader “cause of action” scope of federal preclusion applies to such action. However, regardless of the Shareholder Stipulation Approval Order being deemed a final judgment as discussed above and being given federal preclusive effect, the Court finds that the order did not expand the scope of the New York Order and Final Judgment. In that, although a federal final judgment is not as limited as a state final judgment in its preclusive effect, in order to establish federal preclusion of a final judgment it must be “foreseeably obvious” that the claim at issue will be released. First, in Caruso v. Candle’s, Inc., 201 F.R.D. 306 (S.D.N.Y.2001), a district court noted the following: The Second Circuit has held that “in order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.” “Release is appropriate ‘where there is a realistic identity of issues between the settled class action and the subsequent suit,’ but only if class members have been properly notified of a settlement of their claims so that release of the claims is foreseeably obvious.’ ” Id. at 315 (quoting Feuerman v. Sears, Roebuck & Co., No. 96 Civ. 0120, 1996 WL 648966, at *6 (S.D.N.Y. Nov.6,1996) (quoting, in turn, TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 461 (2d Cir.1982))) (emphasis added). While the Shareholder Stipulation Release incorporated into the New York Final Order and Judgment provided for a broad release of any action" }, { "docid": "8697410", "title": "", "text": "The Second Circuit has held that “in order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.” “Release is appropriate ‘where there is a realistic identity of issues between the settled class action and the subsequent suit,’ but only if class members have been properly notified of a settlement of their claims so that release of the claims is foreseeably obvious.’ ” Id. at 315 (quoting Feuerman v. Sears, Roebuck & Co., No. 96 Civ. 0120, 1996 WL 648966, at *6 (S.D.N.Y. Nov.6,1996) (quoting, in turn, TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 461 (2d Cir.1982))) (emphasis added). While the Shareholder Stipulation Release incorporated into the New York Final Order and Judgment provided for a broad release of any action related to the Debtor, the Court notes, as found earlier, that the release of the Section 16(b) Action was not within the scope of the state court order under federal preclusion law because complete relief in the state court could not have been granted. Therefore, in order for this Court’s approval of the Debtor’s Bankruptcy Rule 9019 motion to have the preclusive effect argued by Defendants, it would have to have expanded the scope of the New York Final Order and Judgment and such expansion would have to be found to be “foreseeably obvious.” When the Debtor filed its Bankruptcy Rule 9019 motion seeking approval of the Shareholder Stipulation and subsequently presented its motion at the August 26, 2002 hearing, it sought an approval order based on the settlement bping in the best interests of the Debtor’s estate. See, e.g., Aug. 26, 2002 Hr’g Tr. at 58 (Case No. 02-12947, filed June 11, 2003, Docket No. 668) (Debtor’s counsel stating “in summation, we believe this [Bankruptcy Rule 9019] application is in the best interest of" }, { "docid": "15345790", "title": "", "text": "the Wahl settlement. The force-placing of insurance policies which did not include coverage for any LLPE period was not the basis for any of the claims asserted in Wahl. As stated by the Wahl Court, “Wahl’s claims in this action all arise from her basic contention that when ASIC issues a ‘force placed’ policy upon the cancellation of a homeowner’s policy, but before the lender’s protections under an LLPE have expired, the ASIC policy ‘overlaps’ the prior coverage and therefore ‘provides no actual coverage.’ ” Wahl v. Am. Sec. Ins. Co., 2008 WL 2444802, at *1 (N.D.Cal. June 16, 2008) (emphasis original). Here, the non-opt-out Plaintiffs’ complaint includes allegations that Defendants force-placed insurance policies that did not overlap with LLPE coverage. The allegations related to those policies depend on a different set of facts as the claims that gave rise to the settlement. The Ninth Circuit’s holding in Hesse v. Sprint Corp. is instructive in this case. In Hesse, the court considered whether a broad release of claims in a nationwide settlement agreement between Sprint and its customers, the Benney settlement, precluded a class action involving a Washington state tax that Sprint charged to its Washington customers. Hesse, 598 F.3d at 584. The court found that the Washington class action was not precluded because the claims did not share an identical factual predicate with the claims resolved in the Benney settlement. The court reasoned as follows: The claims underlying the Benney Settlement dealt exclusively with specific nationwide surcharges to recoup the costs of compliance with federal programs, whereas the claims at issue in the present case involve Sprint’s statewide surcharge to recoup the cost of the Washington B & O Tax allegedly in violation of a Washington statute. The superficial similarity between the two class actions is insufficient to justify the release of the later claims by the settlement of the former. Both involve claims that Sprint improperly billed govern ment taxes or fees to its customers, but they deal with different surcharges, imposed to recoup different costs, that were alleged to be improper for different reasons. Id. at 591." }, { "docid": "15345782", "title": "", "text": "U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984)). The factual allegations must be definite enough to “raise a right to relief above the speculative level.” Id. at 1965. However, a complaint does not need detailed factual allegations to survive dismissal. Id. at 1964. Rather, a complaint need only include enough facts to state a claim that is “plausible on its face.” Id. at 1974. That is, the pleadings must contain factual allegations “plausibly suggesting (not merely consistent with)” a right to relief. Id. at 1965 (noting that this requirement is consistent with Fed. R.Civ.P. 8(a)(2), which requires that the pleadings demonstrate that “the pleader is entitled to relief’). B. Whether the Wahl Settlement Precludes the Claims Defendants argue that the Wahl settlement released any and all of the claims brought by Plaintiffs McNeary-Calloway and the MacKinnons. Plaintiffs contend that the settlement has no effect on this action because they bring different claims that do not share any common factors with the claims in Wahl, except in regards to their allegations concerning the overlap of LLPE and FPI. The Court finds that the Wahl settlement limits the scope of the Plaintiffs’ claims. 1. Identical Factual Predicate a. Background Law “In California, interpretation of a settlement agreement is governed by contract principles.” Howard v. Am. Online Inc., 208 F.3d 741, 747 (9th Cir.2000) (citing General Motors Corp. v. Superior Court, 12 Cal.App.4th 435, 15 Cal.Rptr.2d 622 (1993)). However, “a settlement agreement’s bare assertion that a party will not be liable for a broad swath of potential claims does not necessarily make it so.” Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir.2010) (quoting Williams v. Boeing Co., 517 F.3d 1120, 1134 (9th Cir.2008) (“While Boeing may have drafted the settlement agreement to include as broad a release as possible, the release would have only been enforceable as to subsequent claims ... depending upon the same set of facts.”)). At the same time, “[a] settlement agreement may preclude a party from bringing a related claim in" }, { "docid": "9954737", "title": "", "text": "but also issues that could have been litigated.”) (citing Busick v. Workmen’s Comp. Appeals Bd., 7 Cal.3d 967, 975, 104 Cal.Rptr. 42, 500 P.2d 1386 (1972)). Second, it is well settled that a class action settlement can bar future claims by class members arising from the same transaction even if the claim involves a statute (like the Connecticut statutes relied on by Plaintiff) and even if the claim could not have been raised in the underlying litigation. As the Second Circuit held in TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456 (2d Cir.1982), in order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action. Id. at 460 (quoted with approval in Matsushita, 516 U.S. at 377, 116 S.Ct. 873); see, e.g., Reppert v. Marvin Lumber & Cedar Co., 359 F.3d 53, 58-59 (1st Cir.2004) (same) (quoting Matsushita, 516 U.S. at 377, 116 S.Ct. 873); Nottingham Partners, 925 F.2d at 34 (“[A]s a matter of federal law, a state court can approve and enforce a settlement which requires a party to release claims actually brought, or potentially ‘bringable,’ in federal court under ‘exclusive jurisdiction’ federal statutes even though the state court could not adjudicate claims arising under such statutes.”); Steinmetz v. Toyota Motor Credit Corp., 963 F.Supp. 1294, 1300 (E.D.N.Y.1997) (final judgment and settlement in state court class action barred federal claims based upon same underlying transaction as involved in class action); Huff, Civil Action No. 03-6226(MLC), at *11-15 (settlement and associated release in the Reverse Mortgages Cases barred federal claims based on the same underlying transaction). Cf. In re National Life Ins. Co., 247 F.Supp.2d 486, 494-95 (D.Vt.2002) (scope of class action release from class action settlement in Vermont federal court had “preclusive effect on future lawsuits that are encompassed by the Release,” and the “language" }, { "docid": "16918735", "title": "", "text": "CLIFTON, Circuit Judge: This case requires us to consider whether a broad release of claims in a nationwide settlement agreement between Sprint and its customers precludes the present class action involving a Washington state tax that Sprint invoiced to its Washington customers. That nationwide settlement arose out of a lawsuit that challenged Sprint’s billing of customers for certain federal regulatory fees. Because we conclude that the Washington Plaintiffs’ interests were not adequately represented in the prior action and that their claims are not “based on the identical factual predicate as that underlying the claims in the settled class action,” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir.2008), we hold that the prior settlement did not release the claims at issue in this case, and we vacate the district court’s grant of summary judgment in favor of Sprint. I. Background The State of Washington imposes a business and occupation tax (“B & O tax”) on every person engaged in business activities in the state. Wash. Rev.Code § 82.04.220. Washington law specifies that the B & O tax must be collected from a business as part of its “operating overhead” rather than imposed as a separate “tax[] upon the purchasers or customers.” Id. § 82.04.500 (the “B & O Tax Statute”). It is alleged that Sprint passed the tax directly to its customers as a separate line item labeled ‘Washington State B & O Tax Surcharge” starting in April 2001. Christopher Hesse and Nathaniel Olson (“the Washington Plaintiffs”) filed separate class actions in Washington state court alleging violations of the B & 0 Tax Statute and the Washington Consumer Protection Act (“CPA”), Wash. Rev.Code § 19.86.030, as well as common law breach of contract and unjust enrichment. Sprint removed both cases to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1441(a). The district court dismissed all claims predicated on the B & O Tax Statute as preempted by the Federal Communications Act (“FCA”), 47 U.S.C. § 332(c)(3)(A), but denied Sprint’s motion to dismiss insofar as it related to “Plaintiffs’ other contract and" }, { "docid": "15345784", "title": "", "text": "the future ‘even though the claim was not presented and might not have been presentable in the class action,’ but only where the released claim is ‘based on the identical factual predicate as that underlying the claims in the settled class action.’ ” Id. (citing Williams, 517 F.3d at 1133; Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir.1992)); see also Reyn’s Pasta Bella, LLC v. Visa USA Inc., 442 F.3d 741, 748 (9th Cir.2006) (holding that a settlement release encompasses a plaintiffs claims if they arise from an “identical factual predicate” as the claims asserted by the settling plaintiff in the previous litigation). “A class settlement may also release factually related claims against parties not named as defendants____” Reyn’s Pasta, 442 F.3d at 748 (citing Class Plaintiffs, 955 F.2d at 1287-89). b. Application of Law to Facts Plaintiffs argue that the claims of the non-opt-out members of the Wahl class are not precluded, relying primarily on the doctrine of res judicata. The Court, however, declines to apply res judicata in evaluating the preclusive effects of the settlement; rather, consistent with the Ninth Circuit precedent cited above, the Court will analyze the issue under the “identical factual predicate” doctrine. Similarly, to the extent Defendants argue that the Court need only apply California contract law, the Court rejects that argument. To be sure, California contract law does apply to the settlement’s interpretation. But interpretation is only the first question. The Court must also decide which claims fall within, or outside, the Court’s interpretation of the settlement. The Court applies the “identical factual predicate” doctrine for this latter purpose. As an initial matter, the Court will first address Plaintiffs’ argument that any preclusive effects of the settlement should not apply to Defendants because they should not be considered “Releasess.” Plaintiffs argue that Defendants cannot be considered Releasees because Defendants were non-parties to the Wahl case, listed nowhere in the Wahl settlement documents, did not bargain for any benefit in, nor contribute to, the settlement, and were not even aware of the settlement until well after final approval. Opposition at" }, { "docid": "16767071", "title": "", "text": "L.Rev. 1066 (1996). Our case differs from the problems those courts discussed, however, because it is clear that the Dooner plaintiffs had at least one presently justiciable claim at the time of the Williams settlement: their claim that the disclosure provisions in the leases violated the CLA. See Highsmith, 18 F.3d at 438-40 (reaching the merits of a CLA disclosure claim even though the plaintiff had not actually terminated his lease early). That claim, as even counsel for the Dooner plaintiffs admits, was properly before the Northern District of Illinois in Williams and was subject to resolution in the settlement. We can therefore narrow the issue before us to whether any injunction against the Dooner plaintiffs’ Florida litigation could reach only their disclosure claims, or whether the Illinois court could properly enjoin the entire Florida suit. In our view, the court not only could address the entire suit, but this was the appropriate step for it to take. This conclusion follows from the law relating .to releases of claims. As the Ninth Circuit wrote in an opinion addressing the massive class action settlement of the claims arising from the bond defaults of the Washington Public Power Supply System: [t]he weight of authority holds that a federal court may release not .only those claims alleged in the complaint, but also a claim “based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir.1992) (emphasis in original), quoting TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir.1982). Admittedly, both the WPPSS case and TBK Partners involved class settlements in federal court releasing state law claims that might not have been cognizable in federal court — as opposed to the release of claims that were non-justiciable in the “case or controversy” sense. However, because the logic of both cases has been subsequently applied to situations where state court class settlements released claims of exclusive federal" }, { "docid": "17343294", "title": "", "text": "court noted the “well established” law that “class actions may include claims not presented and even those which could not have been presented as long as the released conduct arises out of the ‘identical factual predicate’ as the settled conduct.” Id. at 106. The court went on to state that “class action settlements have in the past released claims against non-parties where, as here, the claims against the non-party being released were based on the same underlying factual predicate as the claims asserted against the parties to the action being settled.” Id. at 109 (citation omitted). Similarly, here, the same underlying factual predicate supports the foreign currency conversion practices of American Express. American Express converted foreign transactions to U.S. Dollars by unilaterally selecting a currency exchange rate from either an interbank, tourist or official rate, and making an adjustment of up to 2%. It is alleged that the failure to disclose this practice was deceptive. While certainly the initial pleading focused solely on the rate adjustment, it is not unreasonable for American Express to have requested that the pleading be amended to add express language that would resolve any future claims concerning the “spread claim” since the two formed part of one continuous process of foreign currency conversion. In contrast, the cases intervenors rely upon, National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9 (2d Cir.1981), and In re Auction Houses Antitrust Litig., 42 Fed.Appx. 511 (2d Cir. 2002), present instances where the settlements included the release of claims that were not related to the claims litigated. In National Super Spuds, the proposed settlement was not approved because it released claims arising from purchases of unliquidated futures contracts, although the only claims presented and noticed were of plaintiffs who had purchased liquidated futures contracts. In In re Auction Houses, auction patrons alleged only that auction houses conspired to fix prices on domestic auctions. In rejecting a settlement that also released class members’ rights to bring claims related to foreign auctions, the court noted that in expanding the scope of the release, the settlement prejudiced the holders of" }, { "docid": "22110882", "title": "", "text": "fee award is examined in Part IV of the Discussion section of this opinion. DISCUSSION PART I THE RELEASE IS VALID Broad class action settlements are common, since defendants and their cohorts would otherwise face nearly limitless liability from related lawsuits in jurisdictions throughout the country. Practically speaking, “[c]lass action settlements simply will not occur if the parties cannot set definitive limits on defendants’ liability.” Stephenson v. Dow Chem. Co., 273 F.3d 249, 254 (2d Cir.2001), aff'd in part by an equally divided court and vacated in part, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003). Plaintiffs in a class action may release claims that were or could have- been pled in exchange for settlement relief. Plaintiffs’ authority to release claims is limited by the “identical factual predicate” and “adequacy of representation” doctrines. Together, these legal constructs allow plaintiffs to release claims that share the same integral facts as settled claims, provided that the released claims are adequately represented prior to settlement. Adequate representation of a particular claim is established mainly by showing an alignment of interests between class members, not by proving vigorous pursuit of that claim. A. Identical Factual Predicate Doctrine The law is well established in this Circuit and others that class action releases may include claims not presented and even those which could not have been presented as long as the released conduct arises out of the “identical factual predicate” as the settled conduct. TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 460 (2d Cir.1982). 1. Identical Factual Predicate Doctrine Permits Release of Membership Rules Claims The Settlement precludes lawsuits relating to any conduct that was alleged in the complaint or was, or could have been, asserted in this litigation. NuCity argues that the district court strayed from the identical factual predicate rule by approving release of the Membership Rules claims based simply on the court’s recognition of the similarities between the claims in this case and those in Membership Rules. We disagree. The plaintiffs in Membership Rules alleged that Visa and MasterCard’s exclusionary rules, which prohibited member banks from issuing or" }, { "docid": "10696806", "title": "", "text": "be used to prove the compensation and promotion discrimination claims because of the different processes Boeing uses to make salary and promotion decisions. The fact that both the compensation and promotion discrimination claims involve allegations of racial discrimination does not alter our conclusion. See Bar-cume, 819 F.Supp. at 636; cf. Jones v. Greenspan, 445 F.Supp.2d 53, 56-57 (D.D.C.2006). The compensation discrimination claim is a new legal theory depending on different facts, not a new legal theory depending on the same facts. It does not relate back under Rule 15(c). See Markus v. Gschwend (In re Markus), 318 F.3d 1146, 1151 (9th Cir.2002); Percy, 841 F.2d at 979-80; SEC v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir.1982). Plaintiffs contend that the compensation discrimination claim must be-based on “the identical factual predicate' as the claims alleged” in the Original and First Amended Complaints because otherwise the compensation discrimination claim could not have been released by the Consent Decree. See 5 Alba Conte & Herbert Newberg, Newberg on Class Actions § 16:7 (4th ed. 2007) (“It is well-settled that in order to achieve a comprehensive settlement ... a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been pres entable in the class action.”). Because the compensation discrimination claim satisfies the identical factual predicate standard for settlement, Plaintiffs argue, it necessarily satisfies the same conduct, transaction or occurrence standard for relation back. Plaintiffs’ argument assumes that the compensation discrimination claim would have been released by the Consent Decree if it had been finally approved. While Boeing may have drafted the settlement agreement to include as broad a release as possible, the release would have only been enforceable as to subsequent “claims relying upon a legal theory different from that relied upon in the class action complaint, but depending upon the same set of facts.” 4 NewbeRG on Class ActioNS § 12:15. In any ease, the scope of the Consent Decree is not relevant to whether the" }, { "docid": "13627466", "title": "", "text": "a trial or a rehearsal of the trial.” Grinnell, 495 F.2d at 462. “Rather, the Court’s responsibility is to reach an intelligent and objective opinion of the probabilities of ultimate success should the claims be litigated and to form an educated estimate of the complexity, expense and likely duration of such litigation and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise.” In re Met. Life Derivative Litig., 935 F.Supp. 286, 292 (S.D.N.Y.1996) (quoting Lewis v. Newman, 59 F.R.D. 525, 527-28 (S.D.N.Y.1973) (internal quotation marks and ellipsis omitted)). In this case, the fairness and reasonableness of the ASA has been challenged on the basis that it would release claims not properly before the Court. The Second Circuit has observed that “[b]road class action settlements are common,” and that consequently “[pjlaintiffs in a class action may release claims that were or could have been pled in exchange for settlement relief.” Wal-Mart Stores, 396 F.3d at 106. But the Second Circuit has recognized that there are limits. First, “class action releases may include claims not presented and even those which could not have been presented as long as the released conduct arises out of the ‘identical factual predicate’ as the settled conduct.” Id. at 107 (quoting TBK Partners, 675 F.2d at 460). Second, the released claims must be adequately represented prior to settlement, in the sense that “[e]laims arising from a shared set of facts will not be precluded where class plaintiffs have not adequately represented the interests of class members.” Id. at 106-07,110. B. Application I consider the “settlement’s terms” and the “negotiating process” in the context of discussing the Grinnell factors. As the Second Circuit did in Wal-Mart Stores, I combine certain of the factors and discuss them together. See 396 F.3d at 118 (combining fourth, fifth, and sixth factors), 119 (combining eighth and ninth factors). Of course, I consider also the objections to the ASA. As a preliminary matter, I conclude that most of the Grinnell factors favor approval of the settlement. The ASA was the product of arm’s length negotiations" }, { "docid": "22110886", "title": "", "text": "TBK Partners, 675 F.2d at 460; see In re Corrugated Container Antitrust Litig., 643 F.2d 195, 221 (5th Cir. Apr.1981) (“[A] court may release not only those claims alleged in the complaint and before the court, but also claims which ‘could have been alleged by reason of or in connection with any matter or fact set forth or referred to in’ the complaint.”) (quoting Patterson v. Stovall, 528 F.2d 108, 110 n. 2 (7th Cir.1976)). ' Based on the foregoing, the district court did not abuse its discretion by concluding that the claims in Membership Rules are based on the identical factual predicate as the claims in this case. 2. Identical Factual Predicate Doctrine Permits Release of Non-Parties Even though the Reyn’s claims may be released with respect to Visa and Master Card, Pasta Bella objects to the release of the member banks, since they were not parties to this action. However, “class action settlements have in the past released claims against non-parties where, as here, the claims against the non-party being released were based on the same underlying factual predicate as the claims asserted against the parties to the action being settled.” In re Lloyd’s Am. Trust Fund Litig., 2002 WL 31663577, at *11 (S.D.N.Y. Nov. 26, 2002); see, e.g., In re Holocaust Victim Assets Litig., 105 F.Supp.2d 139, 143, 160-65 (E.D.N.Y.2000) (approving class settlement with broad releases against non-parties, including insurance carriers, other banks, and Swiss governmental entities); see also 4 Alba Conte & HERBERT B. Newberg, Newberg on Class ACTIONS § 12:16, at 318 (4th ed. 2002) (“Newberg”) (“A settlement may ... seek to discharge parties who have not been served with process and are therefore not before the court.”). The district court did not, therefore, err by finding that the non-party banks could be released from liability for conduct premised on the identical factual predicate of claims alleged in this action. The banks’ settlement contributions further support the district court’s conclusion. The banks “not only contributed to the Settlement! ], but virtually all of the relief comes from them.” Visa Check III, 297 F.Supp.2d at 514." }, { "docid": "15345783", "title": "", "text": "with the claims in Wahl, except in regards to their allegations concerning the overlap of LLPE and FPI. The Court finds that the Wahl settlement limits the scope of the Plaintiffs’ claims. 1. Identical Factual Predicate a. Background Law “In California, interpretation of a settlement agreement is governed by contract principles.” Howard v. Am. Online Inc., 208 F.3d 741, 747 (9th Cir.2000) (citing General Motors Corp. v. Superior Court, 12 Cal.App.4th 435, 15 Cal.Rptr.2d 622 (1993)). However, “a settlement agreement’s bare assertion that a party will not be liable for a broad swath of potential claims does not necessarily make it so.” Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir.2010) (quoting Williams v. Boeing Co., 517 F.3d 1120, 1134 (9th Cir.2008) (“While Boeing may have drafted the settlement agreement to include as broad a release as possible, the release would have only been enforceable as to subsequent claims ... depending upon the same set of facts.”)). At the same time, “[a] settlement agreement may preclude a party from bringing a related claim in the future ‘even though the claim was not presented and might not have been presentable in the class action,’ but only where the released claim is ‘based on the identical factual predicate as that underlying the claims in the settled class action.’ ” Id. (citing Williams, 517 F.3d at 1133; Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir.1992)); see also Reyn’s Pasta Bella, LLC v. Visa USA Inc., 442 F.3d 741, 748 (9th Cir.2006) (holding that a settlement release encompasses a plaintiffs claims if they arise from an “identical factual predicate” as the claims asserted by the settling plaintiff in the previous litigation). “A class settlement may also release factually related claims against parties not named as defendants____” Reyn’s Pasta, 442 F.3d at 748 (citing Class Plaintiffs, 955 F.2d at 1287-89). b. Application of Law to Facts Plaintiffs argue that the claims of the non-opt-out members of the Wahl class are not precluded, relying primarily on the doctrine of res judicata. The Court, however, declines to apply res judicata in evaluating" } ]

[ { "docid": "23478518", "title": "", "text": "appoint the entire corpus “free of the trust” to herself or her estate. This Mrs. Pipe cannot do, because as long as any of the corpus of her estate remains, it will be held “in trust” for the named remaindermen. III Lastly, the appellant argues that the disallowance of a deduction for this bequest would frustrate the clear intent of Congress in enacting the marital deduction provisions in 1948. Citing extensive legislative history, e.g., S.Rep. No. 1013, 80th Cong., 2d Sess. (1948), the appellant points out that Congress sought a general uniformity of tax treatment of decedents’ estates in both community property and common law states. The method adopted, in general, was to permit a deduction from the gross estate of the spouse who first deceased for the value of property that would be included, if not consumed, in the gross estate of the surviving spouse, thereby subjecting the value of that property so deducted to only one estate tax, which would be exacted at the survivor’s death. Mrs. Pipe argues that the unconsumed principal of her life estate will be included in her gross estate for federal tax purposes because of her unqualified power to invade the corpus during her lifetime. It is not necessary for us, however, to determine the validity of this contention, because the possibility of double taxation is not a sufficient basis for allowing a marital deduction if the bequest does not comply with the specific statutory requirements of section 812(e). Starrett v. Commissioner, 1 Cir., 1955, 223 F.2d 163. Cf. Estate of Shedd v. Commissioner, 9 Cir., 1956, 237 F.2d 345; Estate of Hoffenberg v. Commissioner, 1954, 22 T.C. 1185, affirmed per curiam, 2 Cir., 1955, 223 F.2d 470. Here the appellant has failed to prove that this bequest falls within any of the express provisions for marital deductions under the 1939 Code. Affirmed. . Nor does § 149 change the estate given to a grantee with a power of disposition during lifetime into a fee absolute for purposes of New York state taxes. In re Sonnenburg’s Estate, 1928, 133 Misc. 42, 231 N.Y.S." } ]

[ { "docid": "9703316", "title": "", "text": "to my son, STEPHEN MITTLEMAN, but if my son, STEPHEN MITTLEMAN, does not survive my wife, such portion shall be paid or turned over to the blood or adopted children, if any, of my son, STEPHEN M1TTLEMAN, in equal shares, per stirpes. . See note 1, supra. . See note 1, supra. . See note 1, supra. . See 26 U.S.C. § 2056(a) (1970), quoted infra note 8. . The Commissioner made adjustments, the subject of a stipulation by the parties, for reasons other than disallowance of the deductions. . Estate of Jerome Mittleman, 42 P-H Tax Ct. Mem. Dec. ¶ 73,112 (1973). The only question tendered to the court for decision was the estate’s entitlement to the deduction. . 26 U.S.C. § 2056(a) (1970) provides: Allowance of marital deduction.—For pur- poses of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b), (c), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. . See Northeastern Pennsylvania Nat’I Bank & Trust Co. v. United States, 387 U.S. 213, 219, 87 S.Ct. 1573, 1577, 18 L.Ed.2d 726, 731 (1967); Jackson v. United States, 376 U.S. 503, 510, 84 S.Ct. 869, 873, 11 L.Ed.2d 871, 876 (1964); United States v. Stapf, 375 U.S. 118, 128, 84 S.Ct. 248, 255, 11 L.Ed.2d 195, 203 (1964); Del Mar v. United States, 129 U.S.App.D.C. 51, 53, 390 F.2d 466, 468, cert. denied, 393 U.S. 828, 89 S.Ct. 92, 21 L.Ed.2d 99 (1968). “[T]he underlying purpose [of the deduction] was to equalize the incidence of the estate tax in community property and common-law jurisdictions. Under a community property system a surviving spouse takes outright ownership of half of the community property, which therefore is not included in the deceased spouse’s estate. The marital deduction allows transfer of up to one-half of noncommunity" }, { "docid": "8526526", "title": "", "text": "a result, the decedent’s taxable estate does not usually include property transferred to the surviving spouse. I.R.C. § 2056(a). The theory of 'the marital deduction is that the estate and gift taxes should strike marital property once, on the death of either the decedent or the survivor, but not on both events. See Estate of Pipe v. Commissioner, 241 F.2d 210, 214 (2d Cir.), cert. denied, 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31 (1957). . Consistent with this theory, life estates (and other terminable interests), are not eligible for the marital deduction. I.R.C. § 2056(b). Since life interests end upon the death of the life tenant (the surviving spouse), they typically do not appear in the survivor’s estate. If they were eligible for the marital deduction in the estate of the original decedent, the value they represent would escape transfer tax both when the first and when the the surviving spouse die. For example, unless it is included in Herbert’s taxable estate, the value of Harriet’s life interest in the apartment could well avoid estate tax altogether. It follows that couples have a significant interest in converting non deductible life interests into deductible “claims against the estate.” The government has a commensurate interest in seeing that this does not happen. The Tax Court held that the estate failed to prove the value of any consideration valid for purposes of transfer tax that Harriet gave Herbert in exchange for an interest in his apartment. In reaching this conclusion, however, the court did not decide whether Harriet’s waiver of her right to an equitable distribution of marital property upon divorce constituted valid or invalid consideration— whether, in other words, it was an “other marital right[ ] in the decedent’s property or estate” within the meaning of § 2043(b)(1). Since the estate had, in any event, failed to establish the dollar value of what Harriet had given up, the court declined to reach the § 2043(b)(1) question. We agree with the Tax Court that Harriet’s claim against the estate is not deductible for estate tax purposes. In reaching that conclusion, we" }, { "docid": "10904623", "title": "", "text": "the result of arm’s-length negotiations.” Barrett v. CIR, 22 T.C. 606, 611 (1954); see Bel v. United States, 452 F.2d 683, 694 (5 Cir. 1971); cert. denied, 406 U.S. 919, 92 S.Ct. 1770, 32 L.Ed.2d 118 (1972). It is indisputable that a controversy involving M.T. Waldrup’s will and bequests and devises made thereunder arose between Mrs. Waldrup and the other heirs and estate beneficiaries, and that as a result property interests were assigned or surrendered to the surviving spouse. If Mrs. Waldrup had a valid claim against the estate which was settled as a result of arm’s-length negotiations, we must conclude that the property transferred under the agreement passed from the decedent to his surviving spouse and therefore qualifies as a marital deduction. This is so whether the property transferred as a result of the settlement is “of greater or lesser value than the interests surrendered.” Mills v. United States, 241 F.Supp. 955, 959 (M.D. Ga.1965). Since under the regulations and case authority we must disregard, for marital deduction purposes, the property interests she relinquished under the agreement, we conclude that it is unnecessary to determine whether those interests would have been deductible. In addition, it is unnecessary to determine whether she had a right, under state law or by virtue of the will, to the property she ultimately received. Public policy in favor of settlement militates against such a requirement. Settlement agreements constitute compromises by all parties; the final contract is usually not reflective of either side’s position. To hold that a party receiving property by such a settlement agreement must, have a clear right to such property in order to qualify for the marital deduction would be the death knell of such compromises. Thus, we repeat for the sake of clarity and emphasis that if Mrs. Waldrup had a valid claim against the estate, which was settled as a result of arm’s-length negotiation, the property transferred under the agreement “passed from the decedent to his surviving spouse” within the meaning of the regulations and qualifies as a marital deduction. Since it is uncontradicted that the agreement was the" }, { "docid": "8526525", "title": "", "text": "It states: (b) Marital Rights Not Treated as Consideration— (1) In General — For purposes of this chapter, a relinquishment or promised relinquishment of dower or curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent’s property or estate, shall not be considered to any extent a consideration “in money or money’s worth”. (Emphasis added.) Section 2043(b)(1) was designed to prevent a husband and wife from entering into agreements that use consideration that is valid under state contract law to transform nondeductible marital rights — such as dower — into deductible contractual claims against the estate, thereby depleting the taxable estate. See Natchez v. United States, 705 F.2d 671, 674 (2d Cir.1983); see also I.R.C. § 2034 (including dower rights in the gross estate). Normally, of course, a married couple will have no reason to structure bequests to each other as contractual debts. Most transfers between husband and wife qualify for a marital deduction that exempts interspousal transfers from estate and gift taxes. As a result, the decedent’s taxable estate does not usually include property transferred to the surviving spouse. I.R.C. § 2056(a). The theory of 'the marital deduction is that the estate and gift taxes should strike marital property once, on the death of either the decedent or the survivor, but not on both events. See Estate of Pipe v. Commissioner, 241 F.2d 210, 214 (2d Cir.), cert. denied, 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31 (1957). . Consistent with this theory, life estates (and other terminable interests), are not eligible for the marital deduction. I.R.C. § 2056(b). Since life interests end upon the death of the life tenant (the surviving spouse), they typically do not appear in the survivor’s estate. If they were eligible for the marital deduction in the estate of the original decedent, the value they represent would escape transfer tax both when the first and when the the surviving spouse die. For example, unless it is included in Herbert’s taxable estate, the value of Harriet’s life interest in the apartment could well" }, { "docid": "897272", "title": "", "text": "and convey the property so devised, and to invest and re-invest the proceeds thereof as the survivor shall deem to the best interest of our estate. But any such property or investments, in whatever form they remain, at the death of the survivor of us, shall pass to, and we devise and bequeath the same as hereinafter provided.” In construing the will according to the law of Kansas, this court decided that the surviving spouse was to hold a life estate with an unrestricted right of disposition during his or her lifetime. As indicated above, we have found that the Tyler will construed according to Oklahoma law had exactly the same effect as to freedom of disposition. In the Spicer case we went on to hold that such an interest was sufficient to qualify for the marital deduction, no requirement as to testamentary power of disposition being made. See also Batterton v. United States, 406 F.2d 247 (5th Cir.); Hoffman v. McGinnes, 277 F.2d 598, 90 A.L.R.2d 405 (3d Cir.); McGehee v. Commissioner of Internal Revenue, 260 F.2d 818 (5th Cir.); Burnett v. United States, 314 F.Supp. 492 (D.S.C.), aff’d mem., 436 F.2d 975 (4th Cir.); First National Bank of Janesville v. Nelson, 233 F.Supp. 860 (E.D.Wis.), aff’d 355 F.2d 546 (7th Cir.); Nettz v. Phillips, 202 F.Supp. 270 (S.D.Iowa); Carlson v. Patterson, 190 F.Supp. 452 (N.D.Ala.). In Burnett v. United States, 436 F.2d 975 (4th Cir.), the court said that the power of disposition need not include a power of testamentary disposition to qualify but it must be an unlimited power. To the contrary, see Pipe’s Estate v. Commissioner of Internal Revenue, 241 F.2d 210 (2d Cir.), a 1957 case. In summary, we find that under the terms of this will, Mrs. Tyler received an estate with an absolute and unlimited power of inter vivos disposition, and that such an interest is sufficient to qualify for the marital deduction. Consequently, the judgment of the trial court is reversed." }, { "docid": "22580462", "title": "", "text": "of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest— “(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and “(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse.” 26 U. S. C. (1952 ed.) § 812 (e) (1) (B). The marital-deduction and terminable-interest provisions of the 1954 Code are similar to those of its 1939 counterpart. See 26 U. S. C. (1958 ed.) §2056 (a) and (b). S. Rep. No. 1013, Part 2, 80th Cong., 2d Sess., p. 3. The legislative history states: “In practice [the support allowance deduction] has discriminated in favor of estates located in States which authorize liberal allowances for the support of dependents, and it has probably also tended to delay the settlement of estates.” S. Rep. No. 2375, 81st Cong., 2d Sess., p. 57. United States v. First National Bank & Trust Co. of Augusta, 297 F. 2d 312 (C. A. 5th Cir.); Estate of Gale v. Commissioner, 35 T. C. 215; Estate of Rudnick v. Commissioner, 36 T. C. 1021. Bookwalter v. Lamar, 323 F. 2d 664 (C. A. 8th Cir.); United States v. Mappes, 318 F. 2d 508 (C. A. 10th Cir.); Commissioner v. Ellis’ Estate, 252 F. 2d 109 (C. A. 3d Cir.); Starrett v. Commissioner. 223 F. 2d 163 (C. A. 1st Cir.); Estate of Sbicca v. Commissioner, 35 T. C. 96. “For the purposes of subparagraph (B) an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail upon the death of such spouse if— “(i) such death will cause a termination or failure of such interest only if it occurs within a" }, { "docid": "14655765", "title": "", "text": "will be effective only in the event that my wife, Kathleen M. Allen, chooses not to make the agreement Which I suggest and request, or is unable to do so. . Internal Revenue Code of 1954, § 2056 (b) (1) provides in pertinent part: Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and (B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse * * *. . The ground on which we rest here was not urged below but was briefed and argued in this Court. But, if right on any theory, the Commissioner’s determination should be sustained. Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224 (1937). See also Towers v. Commissioner of Internal Revenue, 247 F.2d 233 (2d Cir. 1957), cert. denied 355 U.S. 914, 78 S.Ct. 343, 2 L.Ed.2d 274 (1958). . See note 5, supra. . It has been suggested that since Kathleen would have taken under either Part I or Part II of Allen’s will, at least the lesser amount which she stood to inherit under Part II should qualify for the marital deduction, but, the fact is that Kathleen chose to take under Part I and viewed at the moment of Allen’s death that interest was terminable in its entirety. . Treas.Reg. § 20-2056(e)-2(c) provides: This paragraph contains rules applicable if the surviving spouse may elect between a property interest offered to her under the decedent’s will or other instrument and a" }, { "docid": "8174356", "title": "", "text": "to trusts, and in this respect are clear and unambiguous. The Congress, in enacting the Technical Changes Act of 1953, 67 Stat. 615, 624, 26 U.S.C.A. § 812 note, permitted a marital deduction where the surviving spouse of a decedent dying between January 1, 1948, the eifective date of the marital deduction provisions, and April 2, 1948, the date of its enactment, was entitled to income for life with a power to use and con sume for support and maintenance even though there was no trust created. This provision was enacted to afford the deduction, in the cases covered, where the act might have been applicable but the testators died without being able to shape their wills by the creation of trusts or in some other fashion so as to come under the requirements of the statute. S.Rep. 685, 83rd Cong. 1st Sess. 1953. If the date of death of the decedent had been between January 1, 1948, and April 8, 1948, or subsequent to August 15, 1954, the date of the enactment of the Internal Revenue Code of 1954, it seems that the marital deduction would have been allowed. See 26 U.S.C.A. (I.R.C. 1954) § 2056(b)(5). Whether, if the marital deduction be disallowed, the undisposed portion of the decedent’s estate is to be included as a part of the husband’s gross estate for tax purposes is a question which is not before us. We are not required to construe the statutory authorization of the marital deduction so that if property is included in the gross estate of one spouse it must be excluded from the gross estate of the other. Starrett v. Commissioner, 1 Cir., 1955, 223 F.2d 163. The question raised here was recently considered by the Court of Appeals of the Second Circuit and by it resolved in favor of the Commissioner. Estate of Pipe v. Commissioner, 2 Cir., 1957, 241 F.2d 210, certiorari denied 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31, affirming 23 T. C. 99. See also Estate of Michael Melamid v. Commissioner, 22 T.C. 966; Estate of Julius Selling v. Commissioner, 24" }, { "docid": "13600323", "title": "", "text": "144, 55 S.Ct. 17, 79 L.Ed. 246, 95 A.L.R. 207. The marital deduction, so-called, is rather an exclusion than a deduction. H.R.Rep. No. 1274, 80th Cong. 2d Sess., C.B. 1948-1, 241, 244. The purpose of the provision was to extend to married taxpayers in common law states the advantages of residents of community property jurisdictions by permitting a surviving spouse to acquire, free from the estate tax exaction, one-half of what is referred to as the adjusted gross estate of the deceased spouse. Lowndes and Kramer Federal Estate and Gift Taxes 372. To limit the effect to the intended purpose, terminable interests are disallowed in determining the marital deduction. The Tax Court has said: “Generally speaking, the ‘terminable interest’ concept was devised for the purpose of assuring that if the property bequeathed to the spouse was to be excluded from gross estate with respect to the decedent, it would be adequately integrated in the spouse’s estate so that on her death it would not escape the death tax a second time. As petitioner expresses it, , ‘The basic principle * * * is that the spouse first to die shall be permitted to pass on to the surviving spouse free of estate tax up to one-half of his or her estate, provided only that the terms of the transfer are such that this property will be taxable in the estate of the surviving spouse.’ ” Estate of Pipe v. Commissioner, 23 T.C. 99, 104, affirmed 2 Cir., 241 F.2d 210. The provisions of the Internal Revenue Code applicable to the facts of this case should be liberally construed and applied to carry out and give effect to the purposes of their enactment. Smythe v. Fiske, 23 Wall. 374, 90 U.S. 374, 23 L.Ed. 47; United States v. Hodson, 10 Wall. 395, 77 U.S. 395, 19 L.Ed. 937. This rule is especially applicable, where, as here, the purpose of a provision in a taxing statute is to secure equality in the treatment of taxpayers. Cf. Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365, 2 S.Ct. 257, 27 L.Ed. 419." }, { "docid": "897271", "title": "", "text": "(Okl.), and Lyons v. Luster, 359 P.2d 567 (Okl.). Therefore, under the terms of the Tyler will, Julia Cherry Tyler was given the power to convey inter vivos absolutely and without limitation the entire title to the one-third interest in the residue of the estate passing to her under the will. Although not explicitly so stated in its findings of fact and conclusions of law, the trial court was apparently of the opinion that Mrs. Tyler did not have the power to dispose of her interest by will since the testator named his children as “remaindermen.” Accordingly, it held that Mrs. Tyler’s interest was not exercisable “in all events” as required by 26 U.S.C. § 2056(b)(5), and, therefore, did not qualify for the marital deduction. We disagree with the trial court’s determination. In the case of United States v. Spicer, 332 F.2d 750 (10th Cir.), this court construed a joint will which contained the following provision: “[The residue shall pass to the survivor] . . . and such survivor shall have the right to sell and convey the property so devised, and to invest and re-invest the proceeds thereof as the survivor shall deem to the best interest of our estate. But any such property or investments, in whatever form they remain, at the death of the survivor of us, shall pass to, and we devise and bequeath the same as hereinafter provided.” In construing the will according to the law of Kansas, this court decided that the surviving spouse was to hold a life estate with an unrestricted right of disposition during his or her lifetime. As indicated above, we have found that the Tyler will construed according to Oklahoma law had exactly the same effect as to freedom of disposition. In the Spicer case we went on to hold that such an interest was sufficient to qualify for the marital deduction, no requirement as to testamentary power of disposition being made. See also Batterton v. United States, 406 F.2d 247 (5th Cir.); Hoffman v. McGinnes, 277 F.2d 598, 90 A.L.R.2d 405 (3d Cir.); McGehee v. Commissioner of Internal" }, { "docid": "3568201", "title": "", "text": "administrative expenses- 17,911. 02 Debts of decedent_ 2,145.44 172,548. 29 192,565. 54 On October 15, 1970, over 1% years after the death of Joseph F. Abely, Nora Abely petitioned the Probate Court of Norfolk County, Mass., for a widow’s allowance for “necessaries for herself.” On February 25, 1971, the court granted her petition and awarded her a widow’s allowance of $50,000. The parties have stipulated that “The widow’s allowance of $50,000 was included in the marital deduction claimed on the estate tax return.” In his deficiency notice, the Commissioner disallowed $64,036.85 of the marital deduction of $172,528.66 claimed by the estate. This amount was disallowed “because the interest of the surviving spouse in property passing from the decedent did not exceed $108,491.83 as follows: Transfer of jointly-owned property_$37,145. 06 Insurance proceeds on life of decedent_ 61, 346. 77 Specific bequest (Article 6 of Will)__ 10,000.00 $108,491. 83” Accordingly, the Commissioner allowed a marital deduction of only $108,491.83. He did not allow a marital deduction in any amount for the value of Mrs. Abely’s interest in the testamentary trust, or for the $50,000 widow’s allowance which she was granted. The Commissioner also increased the gross estate by $1,500, including therein the fair market value of the household furnishings of the decedent. The only issue to be decided is whether the widow’s allowance of $50,000 qualifies for the marital deduction under section 2056, I.R.C. 1954, thereby increasing the amount of that deduction to $158,491.83. Petitioner makes no argument with respect to the other adjustments in the estate tax return made by the Commissioner in his deficiency notice. Section 2056(a), I.R.C. 1954, provides for a deduction from the value of the gross estate of an amount equal to the value of any interest in property which passes, or has passed, from the decedent to the surviving spouse. There are, however, certain restrictions and limitations on this deduction. Thus, section 2056 (b) provides that no deduction shall be allowed for a “terminable interest” passing from the decedent to the surviving spouse. “In general, an interest is regarded as ‘terminable’ and is to be disqualified" }, { "docid": "9517776", "title": "", "text": "subject to separate mortgage indebtedness. Under the mortgages, the decedent, and then his estate, was personally liable for any deficiency the property did not satisfy, which deficiency could be collected from noncom-munity property. In her federal estate tax return, the executrix calculated the marital deduction at $48,935.32 originally, but now claims only $42,606.98. Upon audit, the Commissioner of Internal Revenue reduced the marital deduction to $25,758.18. (The bases upon which the different calculations were made are explained below.) The result of the Commissioner’s redetermination of the marital deduction was to increase the estate tax (with interest) by $5,489.97. The executrix paid this additional amount and filed a timely claim for refund. When the Commissioner denied the refund, the executrix filed the present suit seeking return of that amount. II. A. The marital deduction, added to the Internal Revenue Code in 1948, was \"intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. . . . [It] permits a deceased spouse ... to transfer free of taxes one-half of the non-community property to the surviving spouse.” United States v. Stapf, 375 U.S. 118, 128 (1963). The marital deduction is provided in section 2056(a) of the Internal Revenue Code of 1954. It states that there is to be deducted from \"the gross estate”: an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. The version of section 2056(c)(1) in effect in 1974 limited the marital deduction to 50 percent of tho decedent’s \"adjusted gross estate.” 26 U.S.C. § 2056(c)(1) (1970). Section 2056(c)(2) defines \"adjusted -gross éstate” for this purpose as the \"entire value of the gross éstate” less the \"aggregate amount of the deductions allowed by sections 2053 and 2054.” The latter two sections cover such deductions as various losses of the estate and, to the extent allowable by the law of the jurisdiction under , which the estate is being administered, funeral and ádrinnistration expenses," }, { "docid": "8174357", "title": "", "text": "Internal Revenue Code of 1954, it seems that the marital deduction would have been allowed. See 26 U.S.C.A. (I.R.C. 1954) § 2056(b)(5). Whether, if the marital deduction be disallowed, the undisposed portion of the decedent’s estate is to be included as a part of the husband’s gross estate for tax purposes is a question which is not before us. We are not required to construe the statutory authorization of the marital deduction so that if property is included in the gross estate of one spouse it must be excluded from the gross estate of the other. Starrett v. Commissioner, 1 Cir., 1955, 223 F.2d 163. The question raised here was recently considered by the Court of Appeals of the Second Circuit and by it resolved in favor of the Commissioner. Estate of Pipe v. Commissioner, 2 Cir., 1957, 241 F.2d 210, certiorari denied 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31, affirming 23 T. C. 99. See also Estate of Michael Melamid v. Commissioner, 22 T.C. 966; Estate of Julius Selling v. Commissioner, 24 T.C. 191; C.C.H. Federal Estate and Gift Tax Reporter Par. 2070.055-07. The case presented does not require a departure from the literal meaning of the clear and unambiguous language of the statute. Crooks v. Harrelson, 282 U.S. 55, 51 S.Ct. 49, 75 L.Ed. 156. The terms of the testatrix’ will are such as to preclude any part of her estate from qualifying for the marital deduction. For the making of such adjustment as may be required in the determination of the Estate’s tax liability as a result of our decision with respect to the treatment of stock dividends as a part of the gross estate, the judgment of the Tax Court is Reversed and remanded. On Petition for Rehearing. Our opinion in this ease was rendered on August 18, 1958. The Technical Amendments Act of 1958, P.L. 85-866, 85th Cong. H.R. 8381, was approved on September 2, 1958, 72 Stat. 1668. By Section 93 of this Act, Section 812(e) (1) (F) of the Internal Revenue Code of 1939, 26 U.S.C.A. (I.R.C.1939) § 812 (e) (1)" }, { "docid": "10904622", "title": "", "text": "received under the settlement agreement, “and not as to the value of the property she might have received had she not compromised.” Citizens & Southern Nat’l Bank, supra, at 228 (quoting Mills v. United States, 241 F.Supp. 955, 959 (M.D. Ga.1965)). The regulations also expressly provide, however, that, although property acquired by the surviving spouse pursuant to a state court decree in an adversary will contest will be presumed to be “a bona fide recognition of enforceable rights of the surviving spouse in the decedent’s estate” and thus qualify as a marital deduction, no such presumption attaches when the property is acquired pursuant to a settlement agreement. 26 C.F.R. § 20.2056(e)-2(d)(2). Property transferred as a result of settlement of a will controversy will be deemed to have passed as a “bona fide recognition of enforceable rights of the surviving spouse in the decedent’s estate” and will thus qualify for the marital deduction only if the claim asserted by the surviving spouse against the estate was “a valid one made in good faith and settled as the result of arm’s-length negotiations.” Barrett v. CIR, 22 T.C. 606, 611 (1954); see Bel v. United States, 452 F.2d 683, 694 (5 Cir. 1971); cert. denied, 406 U.S. 919, 92 S.Ct. 1770, 32 L.Ed.2d 118 (1972). It is indisputable that a controversy involving M.T. Waldrup’s will and bequests and devises made thereunder arose between Mrs. Waldrup and the other heirs and estate beneficiaries, and that as a result property interests were assigned or surrendered to the surviving spouse. If Mrs. Waldrup had a valid claim against the estate which was settled as a result of arm’s-length negotiations, we must conclude that the property transferred under the agreement passed from the decedent to his surviving spouse and therefore qualifies as a marital deduction. This is so whether the property transferred as a result of the settlement is “of greater or lesser value than the interests surrendered.” Mills v. United States, 241 F.Supp. 955, 959 (M.D. Ga.1965). Since under the regulations and case authority we must disregard, for marital deduction purposes, the property interests she relinquished" }, { "docid": "3568202", "title": "", "text": "the testamentary trust, or for the $50,000 widow’s allowance which she was granted. The Commissioner also increased the gross estate by $1,500, including therein the fair market value of the household furnishings of the decedent. The only issue to be decided is whether the widow’s allowance of $50,000 qualifies for the marital deduction under section 2056, I.R.C. 1954, thereby increasing the amount of that deduction to $158,491.83. Petitioner makes no argument with respect to the other adjustments in the estate tax return made by the Commissioner in his deficiency notice. Section 2056(a), I.R.C. 1954, provides for a deduction from the value of the gross estate of an amount equal to the value of any interest in property which passes, or has passed, from the decedent to the surviving spouse. There are, however, certain restrictions and limitations on this deduction. Thus, section 2056 (b) provides that no deduction shall be allowed for a “terminable interest” passing from the decedent to the surviving spouse. “In general, an interest is regarded as ‘terminable’ and is to be disqualified for deduction where at the time of decedent’s death (1) it will terminate or fail on the lapse of time or on the occurrence or nonoccurrence of an event or contingency; (2) an interest in the same property passes or has passed from the decedent to someone other than the surviving spouse for less than an adequate and full consideration in money or money’s worth; and (3) such other person will be able to possess or enjoy any part of such property upon the termination or failure of the surviving spouse’s interest.” Estate of Virginia Loren Ray, 54 T.C. 1170, 1173. In our judgment the widow’s allowance of $50,000 granted by the Massa chusetts court is a “terminable interest” within the meaning of these provisions. The issue as to the point of time from which to determine whether a widow’s allowance is a “terminable interest” within the meaning of section 2056 (b) was settled by the Supreme Court in Jackson v. United States, 376 U.S. 503. It is now firmly established that the date of" }, { "docid": "21927469", "title": "", "text": "as a surviving spouse terminates upon the occurrence of such contingencies as the death or remarriage of the survivor, the interest is a terminable one within the meaning of I.R.C. § 2056 (b) (1) and the marital deduction cannot be allowed. Jackson v. United States, supra; Hamilton National Bank of Knoxville v. United States, 353 F.2d 930 (6th Cir. 1965); United States v. Quivey, 292 F.2d 252 (8th Cir. 1961). In the alternative, where, under the law of the state, the widow has an absolute right at the date of her spouse’s death to support for a fixed period of time, and the right is not extinguished by death or remarriage, the allowance for support has been held not to be a terminable interest and therefore qualifies for the marital deduction. Hamilton National Bank of Knoxville v. United States, supra; Estate of Avery v. Commissioner of Internal Revenue, 40 T.C. 392 (1963); Molner v. United States, 175 F.Supp. 271 (D.C.Ill.1959); Estate of Reynolds v. United States, 189 F.Supp. 548 (D.C. Mich.1960). Although there may have at one time been a difference of opinion ; it is now established that the right to support for purposes of the terminable interest rule must be determined as of the date of the death of the decedent. A determination that the right has become indefeasible at some later date will not suffice. Jackson v. United States, supra; Hamilton National Bank of Knoxville v. United States, supra; United States v. Quivey, supra. Thus, the real question to be decided here is whether the Iowa statutes creating the allowance for the surviving spouse create a vested or contingent right at the time of the decedent’s death. If the former result obtains, property passing thereunder qualifies for the marital deduction. If the latter alternative obtains, the interest is terminable and the marital deduction is not available. A determination of which type of interest obtains requires a rather extended review of the relevant Iowa statutes and their history. On January 1, 1964, an Act entitled the Iowa Probate Code became the effective law regulating the administration of decedent’s" }, { "docid": "14655757", "title": "", "text": "(S.D.Ill.1959). On this basis, he upheld the Commissioner’s determination that Allen’s bequest to his spouse was a non-qualifying terminable interest. Compare Estate of Pipe v. Commissioner of Internal Revenue, 241 F.2d 210 (2d Cir.), cert. denied, 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31 (1957). We reach the same result as the District Judge, albeit on a different ground. I When Congress sought to equalize th& tax burdens of estates in community property and common law jurisdictions by utilizing the device of the marital deduction as modified by the terminable interest rule, it chose a technique which required the draftsmen of testamentary instruments to be meticulous in adhering to the formal requirements of section 2056. And, while the- terminable interest rule is, indeed, a thicket, the Congressional purpose in disqualifying terminable bequests was certainly not to elevate form above substance. It was, instead, to prevent the wholesale evasion of estate taxes which the skillful employment of terminable interests could have easily achieved. For example, but for the terminable interest rule, a husband in a common law jurisdiction could bequeath a life interest in property to his wife which could qualify for the marital deduction and thus neither be taxed in his nor in her estate. Although the terminable interest rule is aimed primarily at preventing such results, see Sugarman, Estate and Gift Tax Equalization, 36 Calif.L.Rev. 223, 230-231, 236-238 (1948), it nevertheless does, at times, ensnare bequests which were designed to accomplish objectives other than the avoidance of estate taxation. For this reason, the Supreme Court has observed, in its most recent pronouncement on the terminable interest rule, that “[t]he achievement of the purposes of the marital deduction [remains] * * * dependent to a great degree upon the careful drafting of wills.” Jackson v. United States, 376 U.S. 503, 511, 84 S.Ct. 869, 873, 11 L.Ed.2d 871 (1963). II While section 2056(a) sets out the basic rule for determining the marital deduction, section 2056(b) (1) disqualifies a terminable interest passing from a decedent to his surviving spouse. A terminable interest is defined, in general, as one which possesses" }, { "docid": "11666804", "title": "", "text": "which in general effect allow the marital deduction only with respect to the separate property of the decedent passing to the surviving spouse. Neither the statute nor the regulations define the term “surviving spouse.” Except in unusual circumstances a problem will not arise as to the definition of this term. However, in the circumstances present in this case, it is necessary to determine whether Lee is the decedent’s surviving spouse, as petitioners contend, or Gertrude is decedent’s surviving spouse, as respondent contended. Respondent relies on the judgment of the New York Supreme Court, holding the Mexican divorce obtained by decedent null and void and that Gertrude is and at all times since their marriage has been the lawful wife of decedent in support of his position. Apparently, petitioner does not contend that under the holding of the New York court, Lee rather than Gertrude was decedent’s legal wife at the time of his death but rather contends that under the holding of the United States Court of Appeals for the Second Circuit, to which an appeal in this case would lie, Borax’ Estate v. Commissioner, 349 F. 2d 666 (2d Cir. 1965), revg. 40 T.C. 1001 (1963), cert. denied 383 U.S. 935 (1966); and Wondsel v. Commissioner, 350 F. 2d 339 (2d Cir. 1965), revg. on this issue a Memorandum Opinion of this Court, cert. denied 383 U.S. 935 (1966), the determination of marital status for Federal tax purposes is not controlled by a decision with respect to that status by a court of the State in which the parties reside or are domiciled. Petitioners argue that under our holding in Jack E. Golsen, 54 T.C. 742 (1970), the Borax and Wondsel cases control the result which should be reached in this case. However, petitioners suggest in their argument that Gertrude’s declaratory judgment is of “questionable validity” since Lee was not joined as a party. In our view there is no question that under New York law the declaratory judgment obtained by Gertrude is a valid judgment that the divorce obtained by the decedent in Mexico is null and void" }, { "docid": "11625853", "title": "", "text": "the estate of the surviving spouse.’ Estate of Pipe v. Commissioner, 23 T.C. 99, 104.” In the instant case if the widow’s interest was terminable with the remainder of the estate to the children of the decedent, the deduction should not be allowed. If the commuted dower of the widow consisting of cash was vested in her and becomes a part of her estate when she dies and taxable as such, it is not terminable and should be allowed. S.Rep.No. 1013, Part 2, 80th Cong., 2nd Sess., p. 10; First National Exchange Bank of Roanoke v. United States, 335 F.2d 91, 92 (1964); Hamilton National Bank of Knoxville v. United States, 353 F.2d 930, 932 (1965). It is well established that qualification for marital deduction is determined as of the time of the husband’s death. Jackson v. United States, 376 U.S. 503, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964); First National Exchange Bank of Roanoke v- United States, supra. The statutes of Arkansas pertaining to dower and its commutation do not differ materially from the statutes of the several states considered by the courts. The identical question here has been considered in the Fourth, Fifth, Sixth and Eighth Circuits. The First National Exchange Bank of Roanoke v. United States, supra (4 Cir.,1964); United States v. Hiles, 318 F.2d 56 (5 Cir.,1963); Dougherty v. United States, supra (6 Cir.,1961); United States v. Crosby, 257 F.2d 515 (5 Cir.,1958); United States v. Trader’s National Bank of Kansas City, Executor, 248 F.2d 667 (8 Cir.,1957). Each of these cases held that the cash received pursuant to the statutory law of the state providing for the commuted value of the widow’s interest was not a terminable interest and that it qualified for the marital deduction. In the latest decision on this issue, Hamilton National Bank of Knoxville v. United States, 353 F.2d 930 (6 Cir.,1965), Circuit Judge Celebreeze, for the court, at p. 932, stated: “It has been uniformly held the compensation qualifies for the marital deduction, and invoking the necessary legal procedures to enforce the right is not a condition or contingency precedent" }, { "docid": "14655756", "title": "", "text": "“required agreement” in compliance with Part I of her husband’s will; however, the necessary approval by the Surrogate was not obtained until July 1, 1964. In computing the taxes to be paid by Allen’s estate, the Executrices sought to obtain the maximum marital deduction, which the Commissioner disallowed in its entirety because Allen’s bequest to his wife constituted a non-qualifying terminable interest as described in Internal Revenue Code, of 1954, § 2056(b) (1). The District Judge found that Mrs. Allen’s interest more closely resembled a life estate with a broad, but not unlimited, power to consume, see In re Britt’s Will, 272 App. Div. 426, 71 N.Y.S.2d 405 (3d Dept. 1947); In re Mitchell’s Will, 15 Misc.2d 651, 181 N.Y.S.2d 436 (Surr.Ct., Nassau County, 1959); In re Ingraham’s Estate, 197 Misc. 402, 95 N.Y.S.2d 183 (Surr.Ct., Bronx County, 1950), rather than the surviving spouse’s interest under a joint or mutual will, which interest qualified for the marital deduction in Estate of Vermilya, 41 T.C. 226 (1963), and in Newman v. United States, 176 F.Supp. 364 (S.D.Ill.1959). On this basis, he upheld the Commissioner’s determination that Allen’s bequest to his spouse was a non-qualifying terminable interest. Compare Estate of Pipe v. Commissioner of Internal Revenue, 241 F.2d 210 (2d Cir.), cert. denied, 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31 (1957). We reach the same result as the District Judge, albeit on a different ground. I When Congress sought to equalize th& tax burdens of estates in community property and common law jurisdictions by utilizing the device of the marital deduction as modified by the terminable interest rule, it chose a technique which required the draftsmen of testamentary instruments to be meticulous in adhering to the formal requirements of section 2056. And, while the- terminable interest rule is, indeed, a thicket, the Congressional purpose in disqualifying terminable bequests was certainly not to elevate form above substance. It was, instead, to prevent the wholesale evasion of estate taxes which the skillful employment of terminable interests could have easily achieved. For example, but for the terminable interest rule, a husband in a" } ]

[ { "docid": "13103019", "title": "", "text": "hear informant information which has previously been presented to a disciplinary board. In such cases the Board shall limit its inquiry to the results of the disciplinary proceeding.” . The district court rejected this argument, reasoning that Wolff v. McDonnell, 418 U.S. 539, 568-69, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), indicated that a prison hearing board has broad discretion to determine whether and when informant testimony must be made available. . We recognize that the Massachusetts courts could subsequently interpret these statutory provisions as creating the enforceable substantive liberty interest we, and the Meachum Court, find lacking. If it were to do so, transferees like Lombardo would be entitled to federal procedural due process. See Bishop v. Woods, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). The issue of the effect of the Massachusetts statutory provisions has, of course, been submitted to this court, and because the resolution of this question does not strike us as so difficult that certification of it to the Massachusetts Supreme Judicial Court would be appropriate, we decide the question ourselves. . Plaintiff urges that the prison officials’ alleged failure to provide him with the safeguards required by their own regulations violates the due process clause of the Fourteenth Amendment. We need not decide whether a state agency’s noncompliance with its announced procedures can ever give rise to a federal due process claim. Compare United States v. Leahey, 434 F.2d 7 (1st Cir. 1970). Plaintiff, here, has no federal due process protections because, as our earlier discussion establishes, any violation of the state prison regulations did not result in a deprivation of “liber- . ty” within the meaning of the Fourteenth Amendment. Whatever state created rights plaintiff has in the correct application of these regulations, he has no protected interest under the due process clause of the Fourteenth Amendment. We express no opinion on whether a prisoner who is denied procedural protections that are afforded inmates who are similarly situated might have an equal protection claim. . This is not to say that the district court would not, following remand, have the" } ]

[ { "docid": "21605399", "title": "", "text": "reach Scott’s prison guards until September 30, apparently due to administrative delay in processing the order. Meanwhile, on September 29, Scott’s behavior led to charges of violent conduct, use of threatening language, and failure to comply with an order. As a result, he was kept in keeplock until October 5 and eventually received another suspended sentence. On September 13, 1986 and on January 20, 1987, Scott brought two different actions under 42 U.S.C. § 1983, alleging that segregation in keeplock violated his right to due process. On April 28, 1987, Judge Telesca consolidated the cases, and the consolidated action was transferred to Judge Larimer by order dated March 30, 1988. On the basis of uncontested facts, both Scott and the defendants moved for summary judgment. On November 15, 1990, Judge Larimer held that Scott had failed to show any evidence of constitutional violation and granted defendants’ motion for summary judgment. Scott claims that Hall’s failure to call witnesses at the hearing on the May 27 charges denied him due process, even though Scott himself refused to testify at the hearing. It is well settled that an official may refuse to call witnesses as long as the refusal is justifiable. See Wolff v. McDonnell, 418 U.S. 539, 566-67, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935 (1974). Furthermore, “a prisoner’s request for a witness can be denied on the basis of irrelevance or lack of necessity.” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir.1991). Cf. Ponte v. Real, 471 U.S. 491, 495-500, 105 S.Ct. 2192, 2195-98, 85 L.Ed.2d 553 (1985) (officials not required to justify decision at the time of disciplinary hearing, but may give reasons at later court challenge). Scott did not advise Hall what the testimony of the witnesses would be. Thus, Hall had no reason to believe that the testimony would be relevant or that it would affect his decision. In prison disciplinary proceedings, unlike court trials, officials may draw an adverse inference from an inmate’s failure to testify. Baxter v. Palmigiano, 425 U.S. 308, 316-20, 96 S.Ct. 1551, 1557-59, 47 L.Ed.2d 810 (1976). In this" }, { "docid": "11326631", "title": "", "text": "in his own behalf. On the basis of the evidence adduced at the hearing, the board found Roberts guilty of all the violations charged and sentenced him to thirty days in segregation. Id. A similar pattern of events occurred with respect to Flint, the other named plaintiff. He was charged by prison authorities with using a dangerous weapon to assault two correctional officers and with assaulting an inmate with intent to kill. Flint was arraigned (and entered a plea of not guilty) on similar state criminal charges arising out of the same conduct. In appearances before the disciplinary board on the prison charges Flint requested the assistance of legal counsel and a grant of use immunity concerning all testimony he might provide on the charges against him. Because these requests were denied he refused to testify on his own behalf. He was found guilty on all charges, and was sentenced to thirty days segregation and thirty days loss of good time. In Palmigiano v. Baxter, 510 F.2d 534 (1st Cir. 1974), we held that “in cases where criminal charges are a realistic possibility, prison authorities should consider whether defense counsel, if requested, should not be let into the disciplinary proceeding, not because Wolff [v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)] requires it in that proceeding, but because Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] requires it in light of future criminal prosecution.” 510 F.2d at 537. Subsequently, however, the Supreme Court reversed our decision. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In the Court’s view Miranda, supra had no “substantial bearing on the question whether counsel must be provided at ‘prison disciplinary hearings . . . 425 U.S. at 315, 96 S.Ct. at 1556 (citations omitted). The Court held that its decision in Wolff v. McDonnell, supra, compelled the conclusion that although inmates faced the possibility of state prosecution for conduct involved in their prison charges, they nevertheless did not have a right to either retained or appointed counsel in disciplinary hearings and" }, { "docid": "8616742", "title": "", "text": "period has not enacted legislation designed to bring the Bureau under the procedures of the APA. This inactivity on the part of Congress contrasts sharply with the bustle of federal courts in the prison discipline area. We have already referred to Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In both of these cases the Court recognized that prisoners are entitled to protections that have their sources in the Due Process Clause. 418 U.S. at 556, 94 S.Ct. 2963; 425 U.S. at 314-23, 96 S.Ct. at 1556-60. These protections, however, are fashioned to fit comfortably with the exigencies of prison management. Thus, the Court held that due process does not require that prisoners be accorded an unrestricted right to call witnesses, the assistance of counsel, or the right of confrontation and cross-examination in prison disciplinary proceedings. This is in keeping with the view “that one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceed ing in a state prison.” 418 U.S. at 560, 94 S.Ct. at 2977. Our circuit, as well as others, has also engaged itself in the task of making due process rights a reality in our prisons, both state and federal. From this data, both legal and historical, we draw these conclusions. First, the courts are presently engaged in fashioning the due process rights of prisoners in a manner that does not impair the ability to administer prisons. As the Supreme Court indicated in both Wolff and Baxter this process is by no means finished. Rather it is evolving. Second, the precedents, with few exceptions, indicate that the APA is inapplicable to prison discipline. Whether this can be done, as in Hyser v. Reed, supra, by finding prison disciplinary proceedings, like Hyser’s parole revocation proceedings, not to be an adjudication, such as is required to activate 5 U.S.C. §§ 554, 556, 557 and also probably" }, { "docid": "254490", "title": "", "text": "than in the ordinary disciplinary proceeding. Confronted with a similar situation involving prison disciplinary proceedings against convicts facing possible criminal charges arising out of the same incident, this court once held that the potential for self-incrimination required the presence of counsel to assist those convicts. Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973), vacated and remanded, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), reaffirmed, 510 F.2d 534 (1st Cir. 1974). The Supreme Court disagreed, ruling “[n]either Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], nor Mathis [v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968)], has any substantial bearing on the question whether counsel must be provided at ‘[p]rison disciplinary hearings [which] are not part of a criminal prosecution.’ Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Court has never held, and we decline to do so now, that the requirements of those cases must be met to render pretrial statements admissible in other than criminal cases.” Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 1556, 47 L.Ed.2d 810 (1976). After Palmigiano, I think we must accept that the pendency of criminal charges is irrelevant to the question of whether the due process clause allows a person to insist upon having counsel present at a separate civil proceeding involving similar facts. Although the Supreme Court’s decision in Palmigiano drew upon its earlier ruling in Wolff v. McDonnell, another prisoner case, I do not see how its rationale can be meaningfully limited to prison disciplinary proceedings only. All the key factors present here were present there. Because I believe that Palmigiano applies here, and also because like my brothers I am not prepared to rule that due process requires the presence of retained counsel at all or most student disciplinary proceedings, I am unable to join the opinion of the court. Not only does the court’s decision run counter to the most directly applicable Supreme Court precedent, but I fear that it opens the door to a claim of right" }, { "docid": "18852588", "title": "", "text": "his petition for a writ of habeas corpus. We agree. By regulation, An inmate has the right to submit names of requested witnesses and have them called to testify and to present documents on the inmate’s behalf, provided the calling of witnesses or the disclosure of documentary evidence does not jeopardize or threaten institutional or an individual’s security. The DHO shall call those witnesses who have information directly relevant to the charge(s) and who are reasonably available. 28 C.F.R. § 541.17(c) (1990). This regulation implements protection of a liberty interest in the statutory good time credits that cannot be taken from him in a prison disciplinary hearing without due process of law. See Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985). These due process safeguards include the right to call and present witnesses in his defense. Id. (citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). The right to call witnesses is circumscribed, however, “by the penological need to provide swift discipline in individual cases” and “by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff.” Id. It is subject to the “mutual accommodation between institutional needs and objectives and the provisions of the Constitution....” Id. (quoting Baxter v. Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810 (1976) (citing Wolff, 418 U.S. at 556, 94 S.Ct. at 2975)). “Thus the prisoner’s right to call witnesses and present evidence in disciplinary hearings could be denied if granting the request would be ‘unduly hazardous to institutional safety or correctional goals.’ ” Id. (citations omitted). The Supreme Court also has suggested that a prisoner’s request for a witness can be denied on the basis of irrelevance or lack of necessity. See id., 471 U.S. at 496, 105 S.Ct. at 2195 (quoting Wolff, 418 U.S. at 566, 94 S.Ct. at 2979). The burden is not upon the inmate to prove the official’s conduct was arbitrary and capricious, but upon the official to prove the rationality of" }, { "docid": "1519142", "title": "", "text": "needs of the prison institution and the provisions of the Constitution that are of general application. Wolff v. McDonnell, supra, 418 U.S. at 560, 562, 94 S.Ct. 2963. Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, and Baxter v. Palmigiano, supra, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810, are two prisoners’ rights cases in which the Supreme Court has considered the extent of protection that the Due Process Clause provides in disciplinary hearings. Although both cases involved state prisons and the Due Process Clause of the Fourteenth Amendment, the determinations reflect the judgment of the Supreme Court as to the respective weights to be given the interests of the prison and the inmate in the context of disciplinary hearings and apply equally well to federal prisons and the Due Process Clause of the Fifth Amendment. We conclude that the district court did not properly perceive the relationship of Wolff to the present case. The procedural rights determined to be necessary under the Fifth Amendment by the district court were broader than Morrissey v. Brewer, supra, 408 U.S. 489, 92 S.Ct. 2593, required for parole revocations. The Supreme Court in Wolff, however, contrasted the interests in parole revocations with those in prison disciplinary hearings and concluded that the nature and needs of the prison were such that not all the procedural protections demanded in parole revocation hearings under Morrissey were constitutionally required in prison disciplinary hearings. Wolff v. McDonnell, supra, 418 U.S. at 558-72, 94 S.Ct. 2963. We feel that the district court simply went too far. The order under review cannot be justified on the basis that it was setting standards for a medium security institution designated for youthful offenders rather than, as in Wolff, for all prisons, including maximum security institutions. In Wolff, supra, 418 U.S. at 562, 94 S.Ct. 2963, the Supreme Court decided that all prisons will be treated as one category so that minimum due process requirements will be the same for all penal institutions. Even if it had been proper in the present case to narrow the inquiry" }, { "docid": "21605400", "title": "", "text": "to testify at the hearing. It is well settled that an official may refuse to call witnesses as long as the refusal is justifiable. See Wolff v. McDonnell, 418 U.S. 539, 566-67, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935 (1974). Furthermore, “a prisoner’s request for a witness can be denied on the basis of irrelevance or lack of necessity.” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir.1991). Cf. Ponte v. Real, 471 U.S. 491, 495-500, 105 S.Ct. 2192, 2195-98, 85 L.Ed.2d 553 (1985) (officials not required to justify decision at the time of disciplinary hearing, but may give reasons at later court challenge). Scott did not advise Hall what the testimony of the witnesses would be. Thus, Hall had no reason to believe that the testimony would be relevant or that it would affect his decision. In prison disciplinary proceedings, unlike court trials, officials may draw an adverse inference from an inmate’s failure to testify. Baxter v. Palmigiano, 425 U.S. 308, 316-20, 96 S.Ct. 1551, 1557-59, 47 L.Ed.2d 810 (1976). In this ease, Scott’s refusal to testify created such a strong adverse presumption as to render further testimony irrelevant. Cf. Patterson v. Coughlin, 905 F.2d 564, 568-69 (2d Cir.1990) (If defendant “would have been found guilty ... even if his witnesses had been called, his confinement ... must be considered a justified deprivation of liberty, not a deprivation caused by the State’s failure to permit him to call those witnesses.”). Scott had a long history of prison violence and of unsuccessful administrative appeals after each disciplinary action taken against him. When given the chance to testify, Scott failed to raise any questions requiring additional testimony. Because Scott introduced no evidence to overcome the presumption of deference to Hall’s decision, summary judgment was properly entered on this claim as a matter of law. Next, Scott asserts that Selsky reinstated a vacated sentence, depriving him of due process. Hall sentenced Scott to 60 days in keeplock after finding him guilty of the May 27 charges of verbal abuse, assault, physical threats, refusal to obey orders, and disruption requiring physical" }, { "docid": "11326632", "title": "", "text": "cases where criminal charges are a realistic possibility, prison authorities should consider whether defense counsel, if requested, should not be let into the disciplinary proceeding, not because Wolff [v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)] requires it in that proceeding, but because Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] requires it in light of future criminal prosecution.” 510 F.2d at 537. Subsequently, however, the Supreme Court reversed our decision. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In the Court’s view Miranda, supra had no “substantial bearing on the question whether counsel must be provided at ‘prison disciplinary hearings . . . 425 U.S. at 315, 96 S.Ct. at 1556 (citations omitted). The Court held that its decision in Wolff v. McDonnell, supra, compelled the conclusion that although inmates faced the possibility of state prosecution for conduct involved in their prison charges, they nevertheless did not have a right to either retained or appointed counsel in disciplinary hearings and that state authorities were not in error in failing to advise inmates to the contrary. Baxter v. Palmigiano, supra, 425 U.S. at 314-315, 96 S.Ct. 1551. Appellees contend that the Court’s holding in Baxter is not necessarily controlling in the instant case. They point to the fact that Baxter involved a situation where there was only a possibility of criminal charges being filed whereas in the present case the inmates had already been arraigned on state charges before their disciplinary hearings on the prison infractions. We do not read the Court’s opinion in Baxter, however, to accord leeway for such distinctions. As noted, our opinion in Palmigiano v. Baxter, supra saw a need for legal counsel primarily because the statements inmates might make at the disciplinary hearing would perhaps be used in state court prosecutions for the same conduct. In reversing, the Supreme Court clearly confronted the problem of the possible use of hearing testimony in other contexts, but its ruling indicated that this possibility did not necessitate the presence of counsel at the hearing." }, { "docid": "1519141", "title": "", "text": "criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends. They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life. Although there are very many varieties of prisons with different degrees of security, we must realize that in many of them the inmates are closely supervised and their activities controlled around the clock. Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace. Relationships among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.” Wolff v. McDonnell, supra, 418 U.S. 561-62, 94 S.Ct. 2977. It is against this background that the Supreme Court has said that a judgment on the constitutional issue must be made, requiring an accommodation between the special needs of the prison institution and the provisions of the Constitution that are of general application. Wolff v. McDonnell, supra, 418 U.S. at 560, 562, 94 S.Ct. 2963. Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, and Baxter v. Palmigiano, supra, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810, are two prisoners’ rights cases in which the Supreme Court has considered the extent of protection that the Due Process Clause provides in disciplinary hearings. Although both cases involved state prisons and the Due Process Clause of the Fourteenth Amendment, the determinations reflect the judgment of the Supreme Court as to the respective weights to be given the interests of the prison and the inmate in the context of disciplinary hearings and apply equally well to federal prisons and the Due Process Clause of the Fifth Amendment. We conclude that the district court did not properly perceive the relationship of Wolff to the present case. The procedural rights determined to be necessary under the Fifth Amendment by the district court" }, { "docid": "23566671", "title": "", "text": "(1970). Cf. Self v. United States, 249 F.2d 32 (5 Cir. 1959). Although Keno was caught “holding” the money, the existence of this account was not irrelevant as to his coconspirator. Submission of this evidence to the jury did not amount to an abuse of discretion. II. Keno A. Keno contends that being forced to go to trial in a civil case while criminal charges arising out of the same conduct were pending forced him to choose between preserving his fifth amendment privilege and losing the civil suit. It appears to us, however, that Keno overstates his dilemma. He was not forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may have been denied his most effective defense by remaining silent, there is no indication that invocation of the fifth amendment would have necessarily resulted in an adverse judgment. The Supreme Court has recently addressed a similar problem in Baxter v. Pal-migiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In Baxter, plaintiff asserted that a Rhode Island rule allowing the fact-finder in a prison disciplinary proceeding to draw an adverse inference from a failure to testify derogated his fifth amendment privilege. The Court rejected this argument, finding that this rule was not an invalid attempt to penalize the exercise of the privilege. Justice White wrote for the majority, . a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigi-ano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions “must be based on substantial evidence manifested in the record of the disciplinary proceeding.” Morris v. Travisono, 310 F.Supp. 857, 873 (R.I.1970). It is thus undisputed that an inmate’s silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board. In this respect, this case is very different from the circumstances before the Court in the Garrity [v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562]-Lefkowitz [v. Turley," }, { "docid": "14226367", "title": "", "text": "PER CURIAM. This case, involving the minimum procedural safeguards required for certain prison disciplinary transfers, is before us on remand from the Supreme Court. The Court vacated the judgment of this court in Aikens v. Lash, 514 F.2d 55 (7th Cir. 1975), and remanded the case for further consideration in light of its decision in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Lash v. Aikens, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976). In accordance with this direction, this court considers the effect Baxter has on our prior decision in Aikens. I The history of this litigation is briefly stated. In Aikens v. Lash, 371 F.Supp. 482 (N.D.Ind.1974), the district court held that those inmates transferred for disciplinary reasons from the Indiana Reformatory to the Indiana State Prison and subjected to disciplinary confinement or segregation upon their arrival were entitled to a disciplinary transfer hearing which satisfies the minimum standards of due process. The court issued an injunction ordering the application of certain procedural safeguards to the disciplinary transfers. On appeal, defendants challenged some of the procedures mandated by the district court’s order. In Aikens v. Lash, 514 F.2d 55 (7th Cir. 1975), this court remanded the case to the district court with directions to modify certain aspects of the challenged order in accordance with our opinion. The question before the court at this time is whether further modification is required by the Supreme Court’s recent decision in Baxter, supra. II The district court’s original order required defendants to afford prospective disciplinary transferees the right to confront and cross-examine adverse witnesses unless good cause to deny the right was reflected on the written record. In our prior decision, we held that the Court’s decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), would not support such a broad directive. However, we also noted the Court’s suggestion in Wolff that there may exist limited circumstances in which the courts would be justified in upsetting the prison officials’ discretionary denial of an inmate’s request to cross-examine an adverse" }, { "docid": "22008327", "title": "", "text": "(1) exonerate the individual, (2) reprimand the individual, (3) take away certain privileges, or (4) confine the individual to “double lock” for a maximum of fourteen consecutive days. Double lock is solitary confinement and is considered in Part VIII hereof, The inmate may appeal the decision of the Board to the warden. Conclusions of Law The United States Supreme Court has said: “[Cjonsideration of what procedures due process may require under any given set of circumstances must begin with the determination of the precise nature of the government function involved as well as the private interest that.has been affected by governmental action.” Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The.jail administration'has a valid interest in maintaining a safe and orderly institution. While the disciplinary hearings ‘do not result in serious punishment such-as loss of “good time” credits or solitary confinement for a substantial period of time, they can result in depriving inmates of certain privileges or in segregating them from the general population for up to fourteen days. Prison disciplinary proceedings aré not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. In' sum, there must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. Wolff v. McDonnell, supra. After the notice of charges is delivered a brief period of time should be allowed for the inmate to prepare for his appearance before the Disciplinary Board, The right to call witnesses, confrontation, and cross examination in such a hearing carry an obvious potential for disruption in the jail setting, and in some cases may be hazardous to institutional interests. We will not go so far as to require this. See Baxter v. Palmigiano, 425 U.S. 308, 47 L.Ed.2d 810, 96 S.Ct. 1551 (1976). VIII Double Lock — Solitary Cónfinement Findings of Fact The Disciplinary Board has the authority to sentence an inmate to up to fourteen days in double lock (solitary confinement). See Part VII hereof. A double lock cell is similar" }, { "docid": "11713194", "title": "", "text": "The presence of the inmate at the hearing appears to be an implicit requirement of the notice requirement. In rejecting Nebraska’s practice of notifying an inmate of the charges at the hearing itself and requiring 24-hour advance written notice, the Supreme Court reasoned that “[p]art of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact ... At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the [hearing body].” Wolff, supra, 418 U.S. at 564, 94 S.Ct. at 2978. The Court concludes that an inmate’s presence at a disciplinary hearing is one of the minimal elements of process due a prisoner. The Court is not unmindful of the special exigencies that exist in the prison community and the potential for disruption that a prisoner’s presence may engender. Certain exceptions to due process requirements reflect the particular needs of the prison setting in avoiding disruption, meting out swift punishment for rule violations and the avoidance of havoc within the prison walls. See Baxter, supra, 425 U.S. at 321, 96 S.Ct. at 1559. For example, the due process clause allows a hearing officer to receive testimony outside the presence of the inmate charged with a rule violation. Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.1987) (taking of testimony outside of inmate’s presence did not violate due process in context of recorded and transcribed hearing) (citing Baxter v. Palmigiano, 425 U.S. 308, 321-22, 96 S.Ct. 1551, 1559-60, 47 L.Ed.2d 810 (1976), cert. denied, — U.S. —, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987)). Subject to the discretion of prison officials, an inmate may be denied the right to confront adverse witnesses and to cross-examine them. Baxter, supra, 425 U.S. at 321, 96 S.Ct. at 1559; Wolff, supra, 418 U.S. at 568, 94 S.Ct. at 2980. For this reason, the Court believes that a prisoner may be excluded from a hearing if the hearing officer reasonably concludes" }, { "docid": "4399031", "title": "", "text": "lives and the willingness of informants to continue providing information. Prison officials are given broad discretion when balancing the inmate’s due process interests in institutional safety and an efficient disciplinary system. Id. (citations omitted). B. Liberty Interests and Procedural Protections The court is quite cognizant of the fact that Wolff, Cato and Mendoza involve disciplinary proceedings as opposed to administrative segregation proceedings. Whereas the former involves the use of more restrictive confinement as a punitive measure, the latter involves removal of the prisoner from the general population for ostensibly non-punitive, non-disciplinary reasons. Washington Administrative Code (WAC) 137-32-002(8). WAC 137-32-005 provides that an inmate may be administratively segregated if his presence in the general inmate population would constitute a serious threat: (1) to the safety of institution staff, visitors or other inmates; (2) to such inmate’s safety; (3) of an escape by such inmate; or (4) to the orderly operation of the institution. The Supreme Court has enumerated the rights which inmates of state prisons are entitled to in disciplinary proceedings as a matter of procedural due process under the Fourteenth Amendment. Where the prisoner is charged with serious misconduct and is penalized with the loss of “good-time” credits (reductions of prison term for good behavior) or with punitive segregation, the prisoner’s rights have been stated to include (1) advance written notice of the charges against him or her, (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, and (3) a written statement by the factfinder of the evidence relied upon and reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). As noted, however, the due process clause does not entitle the prisoner to confrontation or cross-examination procedures nor to counsel, and the disciplinary board is not required to make its determinations based solely upon the evidence presented at the hearing. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). The Supreme Court has also held that prison officials are not required to" }, { "docid": "254487", "title": "", "text": "prisoners in disciplinary proceedings are not allowed counsel. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We do not find those cases controlling because of two key distinguishing features: (1) the absence of pending criminal charges in those cases, and (2) the exceptional nature of the prison context. In Baxter, the Court specifically noted that “[n]o criminal proceedings are or were pending against Palmigiano.” 425 U.S. at 317, 96 S.Ct. at 1557. The Court also observed that the “peculiar environment of the prison setting”, id. at 322 n. 5, 96 S.Ct. at 1560, made inappropriate certain procedural requirements. We do not read Palmigiano or Wolff as applying to situations outside the prison walls. Indeed, the Court observed that “one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison.” 418 U.S. at 560, 94 S.Ct. at 2977. Repeated references to the exigencies attending prison settings and the concomitant inappropriateness of applying inflexible due process standards are sprinkled throughout both Palmigiano and Wolff. Cf. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), for an analysis by the Court of a situation where even a prisoner is entitled to counsel and the warning of his right to remain silent. Mathis involved a prisoner, incarcerated for one crime, who was interrogated by an I.R.S. agent concerning possible tax violations. As a result of the questioning, criminal charges were brought against the prisoner. The Court there held that, because the tax investigation was always colored by the possibility of a subsequent criminal prosecution, Miranda rights attached. The importance of Mathis is that it illustrates that, even within the prison setting, there are instances where the right to counsel is essential to ensure due process. The likelihood or pend-ency of criminal charges resulting from the interrogation presents such circumstances. See also Gagnon v. Scarpelli, 411" }, { "docid": "11326637", "title": "", "text": "that the “prison disciplinary process is [an] inherently coercive situation” in which “an inmate must speak in the face of incriminating evidence in order to avoid an adverse inference should he remain silent”; that the inmate’s testimony is therefore compelled for fifth amendment purposes; and that use immunity is required to compensate for this compulsion. This claim cannot prevail, however, because it runs counter to the basic holding of Baxter v. Palmigiano, supra. The Baxter Court distinguished Rhode Island’s disciplinary hearing, in which electing to remain silent can only give rise to adverse inferences, from proceedings where “failure to respond to interrogation [is] treated as a final admission of guilt.” 425 U.S. at 318, 96 S.Ct. at 1557. The Court concluded that Rhode Island’s disciplinary hearing procedures do .not require an inmate to waive his fifth amendment privilege. The Court noted that “if inmates are compelled in [disciplinary] proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered ‘whatever immunity is required to supplant the privilege’ and may not be required ‘to waive such immunity,’ ” id., quoting Lefkowitz v. Turley, supra, 414 U.S. at 85, 94 S.Ct. at 1557, but the Court explicitly stated that where, as here, an inmate can remain silent without there being a conclusive presumption of guilt, “[t]his does not smack of an invalid attempt by the State to compel testimony . or to penalize the exercise of the privilege,” 425 U.S. at 318, 96 S.Ct. at 1557, and the granting of use immunity is not required. We hold, therefore, that Baxter v. Pahnigiano, supra dictates that the judgment of the district court must be reversed. So ordered. . Our original opinion in this case, Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973), was vacated and remanded by the Supreme Court, see Baxter v. Palmigiano, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), for reconsideration in light of its decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). . Prior to his request for use immunity and before his" }, { "docid": "22890116", "title": "", "text": "the disciplinary hearing provided Freeman with all the procedural due process to which he was entitled. Freeman maintains that, even if procedural due process was provided by the disciplinary hearing, the filing of unfounded charges is per se a violation of a constitutionally protected right. The district court agreed, and, having found that the disciplinary charges against plaintiff were false or unfounded, held that the defendant “deprived [plaintiff] of [a] liberty interest without due process when he filed unfounded charges.” Freeman v. Rideout, No. 82-234 Civ., slip op. at 5 (D. Vt. Jan. 2, 1986). There appears to be a confusion between the existence of a constitutionally protected right, and the deprivation of that right without procedural safeguards or due process. The constitutionally protected interest in this case is the right of liberty. The fourteenth amendment does not prohibit every deprivation of liberty. It does, however, prohibit the deprivation of liberty without due process of law. See Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest. The plaintiff, as all other prison inmates, has the right not to be deprived of a protected liberty interest without due process of law. As is shown by the facts of this case, before Freeman could be placed in segregation, due process required that he be granted a hearing on whatever charges had been made against him. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 323, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976); Wolff v. McDonnell, 418 U.S. 539, 571 n. 19, 94 S.Ct. 2963, 2982 n. 19, 41 L.Ed.2d 935 (1974); Sher v. Coughlin, 739 F.2d 77, 81 (2d Cir.1984). In his brief on this appeal, as before the district court, Rideout relies on the case of Hanrahan v. Lane, 747 F.2d 1137 (7th Cir.1984), as support for his contention that the mere filing of false charges does not constitute a per se" }, { "docid": "5614142", "title": "", "text": "States v. Ward, 448 U.S. 242, 253-54, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (“The question before us, then, is whether the penalty imposed in this case, although clearly not ‘criminal’ enough to trigger the protections of the Sixth Amendment, the Double Jeopardy Clause of the Fifth Amendment, or the other procedural guarantees normally associated with criminal prosecutions, is nevertheless so far criminal in its nature as to trigger the Self-Incrimination Clause of the Fifth Amendment.”) (internal alteration and quotation marks omitted). Furthermore, it is clear that sentencing-administration statutes may be “criminal” for some purposes but not for others. For purposes of the Sixth Amendment right to counsel, for example, the prison disciplinary hearings that deprive inmates of good time are not considered “criminal.” The Supreme Court held in Baxter v. Palmigi-ano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), that inmates do not have a right to retained or appointed counsel at.“prison disciplinary hearings which are not part of a. criminal prosecution.” Id. at 315, 96 S.Ct. 1551 (internal alterations and quotation marks omitted). Thus, prison disciplinary hearings are not treated as “criminal” for purposes of the Sixth Amendment. See U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”); see also Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (finding no general due process right to counsel during prison disciplinary proceedings). In another context, this Circuit has held that sentencing-administration statutes are not “criminal” for purposes of Double Jeopardy analysis. See Porter v. Coughlin, 421 F.3d 141, 148 (2d Cir.2005) (applying the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). These precedents do not conflict with the Supreme Court’s holding that good time calculation is a criminal matter for ex post facto purposes. Additionally, the Supreme Court has indicated that it is appropriate for the BOP to interpret sentencing-administration statutes like the one at issue here. See Lopez v. Davis, 531 U.S. 230, 240, 121 S.Ct." }, { "docid": "921061", "title": "", "text": "as a reason for refusing the plaintiff a continuance. The present appeal followed. After the appeal, but before this opinion issued, one set of criminal charges went to trial. Plaintiff testified at his trial and was acquitted. Other charges are pending, and the board has not attempted to go forward with its proceedings. This case can be resolved on the merits by reference to settled law. The board is not constitutionally forbidden from drawing an adverse inference if a doctor refuses to testify at a disciplinary hearing. The board is not conducting a criminal trial, and civil proceedings are governed by a different set of Fifth Amendment principles. In civil cases, the state may not force incriminating testimony from a citizen by threatening penalties or automatic unfavorable judgments. See, e. g., Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). But this principle does not control when the only consequence of silence is the danger that the trier of fact will treat silence as evidence of guilt. The distinction is drawn in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), which held that a prison disciplinary board may give weight to an accused inmate’s silence when he stands mute for fear of a related criminal prosecution. The Baxter Court stated the principle broadly: the Fifth Amendment does not bar an adverse inference “where the privilege is claimed by a party to a civil cause.” Id. at 318, 96 S.Ct. at 1558. We think it applies as forcefully in medical discipline cases as it does in prison discipline cases. The appellee’s assertion that doctors have a stronger liberty and property interest in continuing their practice than prisoners have in avoiding discipline is not very persuasive. Moreover, while such distinctions may have a place in a procedural or substantive due process case, they are not relevant to Fifth Amendment analysis. Cf. Paul v. Davis, 424 U.S. 693,96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Nor is there anything inherently repugnant to due process in requiring the doctor to choose between giving testimony at the" }, { "docid": "4399032", "title": "", "text": "due process under the Fourteenth Amendment. Where the prisoner is charged with serious misconduct and is penalized with the loss of “good-time” credits (reductions of prison term for good behavior) or with punitive segregation, the prisoner’s rights have been stated to include (1) advance written notice of the charges against him or her, (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, and (3) a written statement by the factfinder of the evidence relied upon and reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). As noted, however, the due process clause does not entitle the prisoner to confrontation or cross-examination procedures nor to counsel, and the disciplinary board is not required to make its determinations based solely upon the evidence presented at the hearing. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). The Supreme Court has also held that prison officials are not required to provide reasons in writing to inmates who are denied the privilege of cross-examining or confronting witnesses against them, nor is there a requirement that the hearing record specify the reasons for a refusal to call witnesses requested by an inmate, although the officials must state their reasons for failing to call requested witnesses when this decision is properly subject to a due process challenge in court. Moreover, the Supreme Court has ruled that a decision by officials to revoke a prisoner’s good-time credits will be upheld as long as “some evidence” of the prisoner’s misconduct is reflected in the record. Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). Administrative segregation is subject to a different constitutional analysis. Remaining in the general prison population is not a liberty interest independently protected by the Due Process Clause. Hewitt v. Helms, 459 U.S. 460, 468-69, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). However, states may create a protected liberty interest by the use of “language of an unmistakably mandatory character," } ]

[ { "docid": "23236431", "title": "", "text": "L.Ed.2d 412 (U.S.1990), and a 3-5 minute average detention at an immigration checkpoint, see United States v. Martinez-Fuerte, 428 U.S. 543, 546-47, 562, 96 S.Ct. 3074, 3077-78, 3085, 49 L.Ed.2d 1116 (1976). This circuit previously has dismissed fourth amendment challenges against brief roadblock detentions not based on individualized reasonable suspicion of criminal activity where the purpose of the roadblock is to check for valid drivers’ licenses, vehicle registrations, and proofs of insurance. See United States v. Corral, 823 F.2d 1389, 1392 (10th Cir.1987) (driver’s license, car registration, and proof of insurance check), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 921 (1988); United States v. Lopez, 777 F.2d 543, 547 (10th Cir.1985) (driver’s license and car registration check); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984) (driver’s license and car registration check); United States v. Prichard, 645 F.2d 854, 856-57 (10th Cir.) (driver’s license and car registration check), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981). Assuming that the initial stop of the defendants was for the valid purpose of checking drivers’ licenses, vehicle registrations, and proofs of insurance, we hold that the defendants’ initial detention at the roadblock was not an unreasonable seizure under the fourth amendment. To determine whether the defendants’ vehicles were unlawfully detained after a lawful initial stop for the purpose of facilitating the canine sniff, we look to the timing of the events at the roadblock. In both cases the narcotics-detehtion dog alerted to the defendants’ vehicles before the Socorro police officer had completed his inspection of the defendants’ documents. Because the defendants’ vehicles were not detained beyond the measure of time required for the officer to complete his examination of the defendants’ documents, the purpose for which we assume the defendants were lawfully detained, we hold that there was not a “seizure” of the defendants’ vehicles for purposes of facilitating the canine sniff. C. We now turn to the question raised by this appeal that we expressly reserved in United States v. Stone, 866 F.2d 359, 363 n. 2 (10th Cir.1989), namely, whether the police must" } ]

[ { "docid": "22347797", "title": "", "text": "105 S.Ct. 1568, 1576 (1985) (“Clearly this ease does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers.”). Support for our conclusion can be found in one of Guzman’s Tenth Circuit progeny, United States v. Walker, 933 F.2d 812 (10th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992), another traffic stop case. Significant for our purposes is the following statement by the Walker court: “Under the reasoning of United States v. Morales-Zamora, 914 F.2d 200 (10th Cir.1990), our determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop beyond the measure of time necessary to issue a citation. For example, this ease would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC [National Crime Information Center] license or registration inquiry.” Id. 933 F.2d at 816 n. 2 (emphasis added). So too in this case, appellants cannot complain of questioning that took place during the pendency of a computer check. While appellants were under no obligation to answer the questions, the Constitution does not forbid law enforcement officers from asking. We recognize that a detention may be of excessively long duration even though the officers have not completed and continue to pursue investigation of the matters justifying its initiation. See, e.g., Sharpe, 470 U.S. at 681-84, 105 S.Ct. at 1573-74; Cf. Royer, 460 U.S. at 499, 103 S.Ct. at 1325 (1983) (“an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop”). A prolonged investigative detention may be tantamount to a de facto arrest, a more intrusive custodial state which must be based upon probable cause rather than mere reasonable suspicion. In Sharpe, the Court held that a defendant who was suspected of transporting drugs in his truck and was held for twenty minutes pending the arrival of a DEA agent had not been unreasonably detained: “While it is clear that ‘the brevity of the invasion of the individual’s Fourth Amendment interests is" }, { "docid": "4423293", "title": "", "text": "Early Production of Statements of Government Witnesses; (2) Motion to Compel Discovery or for Dismissal; (3) Motion to Permit Inspection of Physical Evidence; and (4) Reservation of Right to File Other Motions. . Barney has been involved in over two hundred drug stops. . There was testimony at the hearing concerning a discrepancy between the license number on the rented vehicle and the license number as listed in the rental agreement. This discrepancy was not discovered by Barney until later; therefore, it cannot serve as a basis for probable cause. . At this point in the stop, Barney had not yet informed Defendants of the reason why he stopped them. Apparently, Barney cited Ellis for driving without a license and issued a warning for speeding. . Although the court concludes that Akines cannot challenge the legality of the search, \"he can, of course, challenge his own seizure ... If [his] seizure was illegal, evidence obtained as a result of the illegal seizure must be excluded as fruit of the poisonous tree.” United States v. Arango, 912 F.2d 441, 446 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). . The Tenth Circuit also has addressed the constitutionality of a detention effectuated before the officer has returned the driver’s license and issued the citation. United States v. Guzman, 864 F.2d 1512 (10th Cir.1988); United States v. Walker, 933 F.2d 812 (10th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). The Walker court, following Guzman, held that an officer making a traffic stop may request a driver’s license and vehicle registration, may run a computer check on the driver and the vehicle, and may issue a citation. 933 F.2d at 816. However, a detention not reasonably related in scope to the circumstances that justified the interference in the first place is unreasonable under the Fourth Amendment. Id. Accordingly, the officer may only detain a driver beyond the scope of the original stop if he has reasonable suspicion to do so. Again, whether the officer’s suspicion is reasonable is a factual determination to be adduced" }, { "docid": "4059489", "title": "", "text": "second factor is whether the scope and duration of the detention is appropriate given its basis. See Glover, 957 F.2d at 1011. The detention must be “temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); see also Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575. Whether the police “acted less than diligently, or.... unnecessarily prolonged [a suspect’s] detention” are factors to be considered. See Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575 (emphasis in original). Courts of appeals in other circuits have considered what constitutes the appropriate scope of the stop of a vehicle for an actual or suspected traffic violation. In United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) (citations omitted), the court explained that once a routine traffic stop is completed, the vehicle and its occupants cannot be detained further for questioning or other purposes: An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. The facts in Guzman were similar to those of the instant case. The defendant and his wife, apparently of Hispanic ethnicity, were stopped on an interstate highway in New Mexico while driving a Cadillac bearing out-of-state plates, purportedly for a suspected violation of the state’s seatbelt law. Even after the officer had obtained all of the information relevant to the supposed violation, he continued to question the defendant and obtained defendant’s signature on a consent-to-search form. A search of the car revealed drugs and hidden cash. The court of appeals found that the stop was unconstitutionally pretextual. Id. at 1515-18. The court of appeals also accepted the district court’s conclusion that “even if the initial stop was not illegal, the subsequent detention was excessively intrusive,” given the" }, { "docid": "22347796", "title": "", "text": "Thus, detention, not questioning, is the evil at which Terry’s second prong is aimed. Here, appellants cannot successfully claim that the detention exceeded its original scope. Appellants concede, and we have no doubt, that in a valid traffic stop, an officer can request a driver’s license, insurance papers, vehicle registration, run a computer check thereon, and issue a citation. See Kelley, 981 F.2d at 1469; Guzman, 864 F.2d at 1519. In this case, Officer LaChance asked Shabazz to exit the vehicle and produce his driver’s license. He then called in for a computer check of the license. The questioning that took place occurred while the officers were waiting for the results of the computer check. Therefore, the questioning did nothing to extend the duration of the initial, valid seizure. Because the officers were still waiting for the computer check at the time that they received consent to search the ear, the detention to that point continued to be supported by the facts that justified its initiation. Cf. United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 1576 (1985) (“Clearly this ease does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers.”). Support for our conclusion can be found in one of Guzman’s Tenth Circuit progeny, United States v. Walker, 933 F.2d 812 (10th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992), another traffic stop case. Significant for our purposes is the following statement by the Walker court: “Under the reasoning of United States v. Morales-Zamora, 914 F.2d 200 (10th Cir.1990), our determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop beyond the measure of time necessary to issue a citation. For example, this ease would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC [National Crime Information Center] license or registration inquiry.” Id. 933 F.2d at 816 n. 2 (emphasis added). So too in this case, appellants cannot complain of questioning that took place during the pendency of" }, { "docid": "23006650", "title": "", "text": "or that he was not at the time wearing a seat belt. The initial stop was therefore valid. We now turn to the validity of the detention following that initial stop. ' II. Validity of Detention Following Initial Stop: As the Supreme Court has stated, an investigative detention must “last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); see also United States v. Lee, 73 F.3d 1034, 1038-39 (10th Cir.1996). In this case, Mr. McRae’s vehicle was initially stopped because of equipment violations. We have previously stated the parameters of permissible activity during a routine traffic stop: ‘“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.’ ” United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988), overruled in part on other grounds by, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995) (en banc)), cert. denied, — U.S.-, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). Detention beyond that time period is only justified if the officer “has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring ... [or] the initial detention has become a consensual encounter.” Id. at 1483 (citations omitted). The government does not argue, nor could it, that the detention here evolved into a consensual encounter. The government also does not argue, nor could it, that the detention only lasted as long as is necessary to issue the citation and warning. It clearly lasted longer; indeed, Officer Colyar retained Mr. McRae’s license and rental papers after he finished issuing the citation and warning, thus denying Mr. McRae his ability to go on his way. We must therefore determine whether Officer" }, { "docid": "23093552", "title": "", "text": "ease is unsubstantiated surmise. The conclusion reached by the court cannot be upheld because the affidavit supporting the warrant was not so lacking in indicia of probable cause that Deputy Barney’s reliance upon it was entirely unreasonable. The judgment of the district court is REVERSED, and the case is REMANDED for further proceedings. . The videotape of the entire transaction has been made a part of the record on appeal. There is a definite oral response to Deputy Barney’s request; however, the response is neither loud nor clear enough to understand what was said. . A deputy at the sheriffs office signed the affidavit supporting the warrant. Though Barney did not authorize the deputy to sign for him, he testified this was usual county procedure. There is no dispute over the accuracy of the added facts. . See, e.g., United States v. Gonzalez, 763 F.2d 1127, 1133 (10th Cir.1985) (consent to search not sufficiently attenuated from illegal detention where officer asked defendant to accompany him to police station and neither informed defendant he was free to leave nor returned his documentation); United States v. Guzman, 864 F.2d 512, 1519 (10th Cir.1988) (absent reasonable suspicion, officer may not conduct \"intrusive questioning\" while retaining defendant’s driver's license); United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991) (defendant’s continued detention for further questioning unrelated to scope of traffic stop while officer retained his driver’s license \"was an unreasonable seizure under the Fourth Amendment”), cert. denied, - U.S. -, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992); United States v. Recalde, 761 F.2d 1448, 1453-54 (10th Cir.1985) (defendant, whose driver’s license had not been returned, did not consent to be taken to police station). . Although we may simply be disputing the court’s choice of words, as we previously noted, there is a definite and audible response to Deputy Barney’s request. The difficulty, however, is in understanding that response. . The district court's finding that defendant Ellis nonetheless felt threatened because he raised his hands upon exiting the vehicle does not flow from the evidence. The tape shows the defendant's action was so equivocal" }, { "docid": "23492728", "title": "", "text": "F.2d at 1524. Id. at 1370 (brackets added; footnote deleted). Since the issuance of Tapia, we have consistently held that once an officer has briefly stopped a motor vehicle operator for the purpose of issuing a traffic violation (i.e., a ticket), the officer’s continuing detention of the vehicle’s occupants is authorized under the Fourth Amendment only if the officer can point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Griffin, 109 F.3d at 708 (citing Tapia, 912 F.2d at 1370); accord United States v. Holloman, 113 F.3d 192, 196 (11th Cir.1997) (per curiam) (noting that a police stop cannot otherwise last “any longer than necessary to process the traffic violation”). Our sister circuits are of the same view. In United States v. Hunnicutt, 135 F.3d 1345 (10th Cir.1998), for example, the Tenth Circuit, consistent with Tapia, found: An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). The investigative detention usually must “last no longer than is necessary to effectuate the purpose of the stop,” and “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter. See Gonzalez-Lerma, 14 F.3d at 1483. The officer had not returned Mr. Hunnicutt’s license at the time he asked about guns and drugs, so further questioning unrelated to the initial stop must" }, { "docid": "8211499", "title": "", "text": "complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). However, we need not make a time and motion study of traffic stops; we consider the detention as a whole and the touchstone of our inquiry is reasonableness. Furthermore, “[a] traffic stop does not become unreasonable merely because the officer asks questions unrelated to the initial purpose for the stop, provided that those questions do not unreasonably extend the amount of time that the subject is delayed.” United States v. Alcaraz-Arel-lano, 441 F.3d 1252, 1259 (10th Cir.2006) (quoting United States v. Martin, 422 F.3d 597, 601-02 (7th Cir.2005)). Once the officer has completed the ticket and returned the driver’s license and registration, however, he may not extend the scope of the detention by asking further questions without reasonable suspicion or consent. Id. Here, the detention began when Mr. Patterson pulled over to the curb at 10:04 a.m. Shortly after 10:17, Trooper Steelman had Mr. Patterson sign the warning citation and returned his documentation; at this point, the scope of the detention unquestionably expanded beyond the initial traffic stop for speeding. However, Hilto’s alert, which occurred while Trooper Steelman was asking Mr. Patterson to sign the citation, provided the reasonable suspicion necessary to detain Mr. Patterson from the time of the alert until the time of the arrest. The narrow question for us is whether the detention prior to the alert was unreasonable. In answering it, we must consider the individual circumstances that confronted the troopers, using “common sense and ordinary human experience” to determine whether “the police acted less than diligently, or ... unnecessarily prolonged [the] detention.” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The detention of Mr. Patterson based only on his speeding violation lasted 13 minutes and 27 seconds. During this time, the trooper walked back and forth from his patrol vehicle to the van twice, spoke with both occupants about their travel plans, inspected Mr. Patterson’s license, registration, and insurance information, contacted dispatch, waited for a Triple I check, filled in the" }, { "docid": "23280596", "title": "", "text": "“whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879. As the district court here recognized, we applied this inquiry in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), a case involving a routine traffic stop. In Guzman, a state police officer stopped a vehicle because the driver and a passenger in the car were not wearing their seat belts. The driver produced documents that satisfied the officer as to the driver’s right to operate the vehicle. Although the officer had no reasonable suspicion of criminal activity other than a seat belt violation, he decided to conduct a further investigation and proceeded to ask the occupants a series of intrusive questions unrelated to the traffic stop. He did not return the defendant’s driver’s license. We concluded that the officer’s detention of the occupants to ask these intrusive questions was unreasonable. We stated: An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. * * * When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Id. at 1519 (citations omitted). We noted that although the detention was of a relatively short duration, “it nevertheless unreasonably extended beyond the length necessary for its only legitimate purpose— the issuance of a citation for a seat belt violation.” Id. at 1519 n. 8. There is no question that the initial stop of the defendant’s vehicle in the instant case was justified. The district court concluded that the defendant had been lawfully stopped for speeding. After being stopped, the defendant produced a valid driver’s license that established his right to operate a motor vehicle. The defendant also produced the registration slip for the car. The district court concluded that under the circumstances the defendant had" }, { "docid": "22072939", "title": "", "text": "may detain the driver only so long as is necessary to request a driver’s license and vehicle registration, run a computer check, and issue a citation. See, e.g., United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995); United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991). Questions unrelated to the driver’s traffic violation or to Ms right to operate the veMcle during tMs legitimate period of detention are only justified when the officer can support those questions by an objectively reasonable suspicion of other illegal activity. Jones, 44 F.3d at 872. In addition, detaining the driver beyond the time necessary to issue the citation, and/or questioning him during that extended detention likewise violates the Fourth Amendment absent reasonable suspicion. Walker, 933 F.2d at 816. Second, our cases make clear that “[ujnless the officer has returned the driver’s documentation, the driver is not free to go, and the encounter is not consensual.” United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993). So long as the officer retains the driver’s license and registration, therefore, the officer cannot justify questions unrelated to the traffic stop as a consensual encounter. Such questions must be supported by an objectively reasonable suspicion of illegal activity. See Walker, 933 F.2d at 817. We have permitted intrusive questiomng absent reasonable suspicion once the driver’s license and registration have been returned on the theory that because the driver is then “free to leave,” the encounter is consensual. See, e.g., United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990). As we recognized in Werking, however, the line between a detention and a consensual encounter is not an easy one to draw. Id. at 1409. While a driver is as a matter of law free to leave once the officer has returned his documents, I am not persuaded that most drivers in reality understand that this act marks the end of their detention and the beginning of their right to go about their business, particularly when the return is immediately followed by questions about guns or drugs. Consequently, giving undue weight to the return of a driver’s" }, { "docid": "22470064", "title": "", "text": "arrest, but held that Bushnell had reasonable suspicion justifying the continued detention. Finally, although the magistrate judge found that “at the time of the consent to search Fernandez was still being detained,” Report at 20-21, he nevertheless held that Fernandez’s consent to search was voluntary. He denied the motion to suppress and the district court adopted the Report and Recommendation in its entirety. II. In reviewing the Fourth Amendment claims of Fernandez, we uphold the factual findings of the district court unless they are clearly erroneous. United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). We are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge. United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990). However, the ultimate determination of reasonableness under the Fourth Amendment is a question of law which we review de novo. Walker, 933 F.2d at 815. Fernandez raises three Fourth Amendment claims. First, he contends the stop was pretextual because a reasonable officer under the circumstances would not have made the stop in the absence of an invalid purpose. Second, he argues that his detention beyond the time necessary to issue a citation was not based on reasonable suspicion. Finally, he contends that he did not give free and intelligent consent to search his truck. We address each of these claims in turn. A. A pretextual stop occurs when an officer uses some legal justification to stop a person or vehicle in order to investigate unrelated criminal matters for which the officer lacks reasonable suspicion. See United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). In Guzman, we defined the test to be applied to claims of pretextual stop. To determine whether an investigative detention is unconstitutional as a pretext we ask “ ‘not whether the officer could validly have made the stop, but whether under the same circumstances a reasonable officer would" }, { "docid": "22839048", "title": "", "text": "the search of the entire car, including the secret compartment. C A traffic stop is an investigative detention analogous to a Terry stop, in that, although probable cause is not required, the detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping the automobile. Horn, 970 F.2d at 731. Here, Officer Barney obtained a radar reading on defendant’s car of seventy-five miles per hour in a sixty-five miles per hour zone, and confirmed that reading by pacing defendant for a short distance. Thus, the stop and detention for speeding was clearly supported by a reasonable suspicion that a violation had occurred, and defendant does not argue otherwise. Nor is there any evidence that the traffic stop was a pretext to investigate an unrelated crime for which no reasonable suspicion existed. Here, as in Horn, no argument has been made that the initial stop was for any reason other than the speeding violation. “Absent introduction of any rationale for the stop outside the parameters of the traffic violations, the stop cannot, by definition, be called ‘pretextual.’ ” Id. The initial stop of defendant for a traffic violation was consistent with the requirements of the Fourth Amendment. D During a routine traffic stop, the detaining officer may request a driver’s license and vehicle registration, run a computer check on the car and driver, and issue a citation. Walker, 933 F.2d at 816; United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991); United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988). “If the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.” Pena, 920 F.2d at 1514. If the officer wishes to detain the driver for further questioning unrelated to the initial stop, the officer must have an objectively reasonable articulable suspicion that illegal activity has occurred or is occurring. Id. In this case, Officer Barney testified that defendant appeared" }, { "docid": "23280595", "title": "", "text": "ultimate determination of reasonableness under the Fourth Amendment, however, is a determination of law that we review de novo. United States v. Pena, 920 F.2d 1509, 1513-14 (10th Cir.1990). The Fourth Amendment protects against unreasonable searches and seizures. The stopping of a vehicle and the detention of its occupants constitute a “seizure” within the meaning of the Fourth Amendment. An ordinary traffic stop is a limited seizure, however, and is more like an investigative detention than a custodial arrest. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984) (“[T]he usual traffic stop is more analogous to a so-called ‘Terry stop’ ... than to a formal arrest.”) Accordingly, we have judged the reasonableness of traffic stops under the principles pertaining to investigative detentions announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988). The Supreme Court has adopted a dual inquiry for evaluating the reasonableness of investigative detentions. Under this approach, the court determines “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879. As the district court here recognized, we applied this inquiry in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), a case involving a routine traffic stop. In Guzman, a state police officer stopped a vehicle because the driver and a passenger in the car were not wearing their seat belts. The driver produced documents that satisfied the officer as to the driver’s right to operate the vehicle. Although the officer had no reasonable suspicion of criminal activity other than a seat belt violation, he decided to conduct a further investigation and proceeded to ask the occupants a series of intrusive questions unrelated to the traffic stop. He did not return the defendant’s driver’s license. We concluded that the officer’s detention of the occupants to ask these intrusive questions was unreasonable. We stated: An officer conducting a routine" }, { "docid": "23111557", "title": "", "text": "but stated that he had $1600 in the glove compartment and $150 in his pocket. Id. The officer then obtained the defendant’s consent to search the vehicle, and discovered 86 kilograms of cocaine. Id. The Tenth Circuit held that the initial stop was valid, but that the continued detention and questioning unrelated to the traffic violation were unreasonable. Id. at 816. In its opinion denying the government’s motion for rehearing, the court stated: We think that this type of questioning— about matters unrelated to the reason for the stop — would naturally engender fear and resentment in otherwise law-abiding citizens who expect to be detained briefly for the purpose of receiving a traffic citation. 941 F.2d at 1088. Relying on Guzman, the court remanded the case to the district court for findings on the issue of the volun-tariness of the defendant’s consent. 933 F.2d at 817-18. Kelley maintains that the officers’ questioning of him and Andrews concerning the purpose for their trip to and from Houston, like the questioning involved in Guzman and Walker, unreasonably exceeded the scope of investigation necessary to dispose of the seatbelt violations. (2) The following is a summary of the evidence at the suppression hearing relevant to the legality of the detention. Officer Froman testified that on November 10, 1991, he and his partner, Officer LaChance, were operating their police vehicle on Interstate 10 in Beaumont, Texas. They observed a red Plymouth occupied by two persons, traveling in an easterly direction on Interstate 10, which links Houston, to the west, and Beaumont, to the east. The female passenger was sitting in the middle of the front seat, almost in the male driver’s lap. As they began to follow the vehicle, Froman observed that the driver was not wearing a seatbelt because .the buckle was visible from the rear, hanging over the driver’s left shoulder. They stopped the vehicle because neither occupant was wearing seatbelts, as required by state law. Froman testified that he approached the driver’s side and obtained Kelley’s driver’s license, and then asked Kelley to exit and step to the rear of the" }, { "docid": "8721114", "title": "", "text": "response to the agents’ continued questioning. For the reasons that follow, any suspicion aroused by Mr. Lambert’s responses to the agents questions cannot be considered in assessing whether the agents had reasonable suspicion to detain him because all these statements and actions occurred after Mr. Lambert had been seized. See Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963) (statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention). Accordingly, we do not detail these facts or determine whether any objectively reasonable suspicion was created therefrom. . In the context of a traffic stop, we have held: An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) (citations omitted). While not directly on point — the agents here were not concerned with whether Mr. Lambert could lawfully operate a motor vehicle or in issuing a traffic citation — the principle of the traffic stop cases, i.e., that an individual's identification should be retained no longer than necessary to accomplish the purpose for its request, does apply. The agents presumably requested Mr. Lambert's driver's license in order to establish his identity and possibly to determine if he was traveling under an alias. This, they were able to accomplish almost immediately after receiving the license. They did not attempt to check for any outstanding warrants based on the license for nearly half an hour. No explanation appears in the record as to why the agents waited so long to run a check, though the record indicates that once they decided to do so, it took a very short time to determine there were no outstanding warrants against Mr. Lambert. Under" }, { "docid": "23093532", "title": "", "text": "was no impropriety up to the point when Barney issued the citation.” Id. However, because the initial detention “ceased” after Deputy Barney cited Mr. Ellis and returned Mr. McKneely’s driver’s license and ear rental agreement, any further detention would be “improper unless based on a reasonable suspicion or on consent.” Id. The court concluded Deputy Barney did not have reasonable suspicion to detain defendants beyond the initial traffic stop because he “was not aware of any inconsistency” in McKneely’s documents, “was not apprised that any of the Defendants had a, criminal record,” and could not identify the chemical odor emanating from defendants’ vehicle. Id. The court found the deputy’s inability to identify the chemical odor partic-' ularly troubling given his involvement in over 200 drug stops. Curiously, the court also determined that defendants were “free to leave” after Deputy . Barney returned Mr. MeKneely’s papers and cited Mr. Ellis. Id. at 1544 (citation omitted). The court reasoned, “Barney’s request to search the vehicle was not made in a threatening or overbearing manner, he did not touch Defendants or display a weapon, and other officers were not present.” Id. (citation omitted). Our review of this matter, therefore, is somewhat complicated by the district court’s apparently inconsistent legal conclusions. “[T]he unlawful detention inquiry is fact-intensive, and we review the district court’s fact findings for clear error.” United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991) (citation omitted), cert. denied, — U.S. -, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992). However, “the ultimate issue of whether a seizure occurred is a question of law” which we review de novo. United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir.1992) (quoting United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992) (citations omitted)). We conclude the district court misapplied the law of this Circuit, thereby overlooking the clear line historically drawn between police-citizen encounters which occur before and after an officer returns a person’s driver’s license, ear registration, or other documentation. We have consistently held an officer who retains a .driver’s paperwork while asking the person questions unrelated to .the initial purpose of" }, { "docid": "16769576", "title": "", "text": "a license plate were lawful; although officer was able to observe a registration tag once he stopped the vehicle, the tag was not displayed “in a place and position to be clearly visible” as required by Kan. Stat. Ann. § 8-133); see also United States v. DeGasso, 369 F.3d 1139, 1149 (10th Cir.2004) (concluding the officer’s detention of the defendant was lawful because the officer observed a continuing violation of state law after stopping the defendant’s vehicle). 2. Continued Detention Lyons argues his continued detention after Ranieri returned his driver’s license, the rental agreement and the alleged warning ticket was unlawful even if the initial stop was proper. In addition to being justified at its inception, a lawful traffic stop must be “reasonably related in scope to the circumstances which justified the interference in the first place.” Williams, 271 F.3d at 1266. “A seizure that is justified solely by the interest in issuing a warning ticket to the driver may become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); see also United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997) (“An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification.”). Therefore, once an officer returns the driver’s license and vehicle registration and issues a warning ticket, he must allow the driver to proceed without further detention or questioning unless the officer has an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity. Karam, 496 F.3d at 1161. In determining whether an officer had reasonable suspicion to continue to detain a driver after returning the driver’s paperwork and issuing a warning ticket, we look to “the totality of the circumstances to see whether the officer had a particularized and objective basis for suspecting legal wrongdoing.” United States v. Williams, 403 F.3d 1203, 1207 (10th Cir.2005) (quotations omitted). “This process allows officers to draw on" }, { "docid": "22839049", "title": "", "text": "traffic violations, the stop cannot, by definition, be called ‘pretextual.’ ” Id. The initial stop of defendant for a traffic violation was consistent with the requirements of the Fourth Amendment. D During a routine traffic stop, the detaining officer may request a driver’s license and vehicle registration, run a computer check on the car and driver, and issue a citation. Walker, 933 F.2d at 816; United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991); United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988). “If the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.” Pena, 920 F.2d at 1514. If the officer wishes to detain the driver for further questioning unrelated to the initial stop, the officer must have an objectively reasonable articulable suspicion that illegal activity has occurred or is occurring. Id. In this case, Officer Barney testified that defendant appeared “panicky” and was unable to provide even a general address for his alleged uncle, from whom he claimed to have borrowed the car. Based on these two factors, Barney then inquired as to whether defendant had any firearms or narcotics in the car. The district court made no finding as to whether this evidence was sufficient to support a reasonable suspicion of illegal conduct at that time. However, because the relevant facts are undisputed, we need not remand for further findings and may determine as a matter of law whether the facts as found justified the continued detention and questioning by the officer. When Barney questioned defendant about matters unrelated to the initial traffic stop, the detention entered a new phase. Barney still retained defendant’s license and registration at that point, so defendant was not free to leave. Thus, any questions asked were not part of a consensual encounter between officer and citizen, but were elements of an investigative detention. Walker, 933 F.2d at 817. Whether such an investigative detention is supported by an objectively" }, { "docid": "9335069", "title": "", "text": "the reasonable suspicion necessary to support a stop.” United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). In this circuit the test for determining whether the stop was unconstitutional is “ ‘whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.’ ” Id. at 1517 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)). Defendant did not raise the legality of the stop at the suppression hearing; therefore the district court did not apply the objective standard for pretextual stops and there is no record from which we can independently apply the test. Deputy Barney testified that his attention was drawn to defendant’s vehicle because he clocked it going seventy-one m.p.h. in a sixty-five m.p.h. zone; and that he decided to stop the vehicle for speeding. Defendant points out that Barney did not write a ticket for speeding and argues this demonstrates the stop was pretextual. Barney testified, however, that immediately upon reaching the vehicle he smelled an odor suggesting the vehicle contained contraband drugs. Barney’s failure to issue a speeding ticket when he immediately suspected that defendant was transporting drugs is logical and does not compel a finding that the stop was pretextual. The district court found the stop was based on speeding, and on the record before us we hold that the district court’s finding that the stop was lawful is not clearly erroneous. B Defendant argues that even if the initial stop was not pretextual, the detention that followed the stop was unreasonable. “During a routine traffic stop, the detaining officer may request a driver’s license and vehicle registration, run a computer check on the car and driver, and issue a citation.” United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1998) (citations omitted). “ ‘If the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.’ ” Id. (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, — U.S. -, 111" }, { "docid": "23111562", "title": "", "text": "officers were entitled to request a driver’s license and vehicle registration, run a computer check, and issue a citation. We also think that, under the circumstances of this stop, they were entitled to engage in conversations with Kelley and Andrews in order to determine whether, for example, Kelley was operating Andrews’s vehicle with her permission, and whether Andrews was being held against her will. The officers did not issue warnings or citations for the seat-belt violations, and there is no evidence in the record regarding the amount of time that it would have taken to do so. See Walker, 933 F.2d at 816 n. 2 (noting that the court’s determination that the defendant was unlawfully detained might have been different if the questioning had not delayed the stop beyond the time necessary for issuance of a citation). We do not disagree with the Tenth Circuit that, under appropriate circumstances, extensive questioning about matters wholly unrelated to the purpose of a routine traffic stop may violate the Fourth Amendment. However, it is unnecessary for us to determine whether the questioning that took place here constituted an unreasonable detention, because, even if it did, we hold, consistent with all other authorities, that Andrews’s valid voluntary consent to the search cured any Fourth Amendment violation that may have occurred. We now turn to the issue of consent. (3) As the Tenth Circuit recognized in Guzman and Walker, voluntary consent can validate a search even when the consent to search is preceded by a Fourth Amendment violation. Guzman, 864 F.2d at 1520-21; Walker, 933 F.2d at 817-18. Our court also has long recognized this principle. See, e.g., United States v. Ballard, 573 F.2d 913, 916 (5th Cir.1978) (holding that consent can, in proper circumstances, validate a search following an illegal arrest). “To be valid, consent to search must be free and voluntary.” United States v. Olivier-Becerril, 861 F.2d 424, 425 (5th Cir.1988). The government has the burden of proving, by a preponderance of the evidence, that the consent was voluntary. United States v. Yeagin, 927 F.2d 798, 800 (5th Cir.1991). Where consent is preceded" } ]

[ { "docid": "16836462", "title": "", "text": "the Bankruptcy Code and the former Act, and which this court relies on for its authority. Jenson v. Continental Financial Corp., 591 F.2d 477 (8th Cir.1979); In re Knutson, 563 F.2d 916 (8th Cir.1977); Matter of Lake Minnewaska Mountain Houses, Inc., 11 B.R. 455 (Bkrtcy.S.D.N.Y.1981); In re New England Carpet Co., 18 B.R. 514 (Bkrtcy.D.Vermont 1982). See also Countryman “Executory Contracts in Bankruptcy: Part I” 57 Minn.L.Rev. 439 (1973); Countryman, “Executory Contracts in Bankruptcy: Part II” 58 Minn.L.Rev. 479 (1974). The existence of an executory contract gives the trustee in bankruptcy the power to reject or assume that contract subject to the approval of the court. 11 U.S.C. Section 365(a). Rejection of an ex-ecutory contract does not necessarily require an affirmative act by the debtor. If the trustee does not either assume or reject the contract within 60 days of the order for relief it is automatically deemed rejected. 11 U.S.C. § 365(d)(1). This court finds that to be the situation in this matter and thus recognizes the subject contract as having been rejected. The rejection of this contract does not, however, leave Ms. Davies immune from any claim for damages resulting from that rejection. Under the Code, a rejection gives rise to a legal fiction that a breach of the contract occurred immediately prior to the filing of the petition. 11 U.S.C. Section 365(g)(1). Thus, a claim is allowable for those damages resulting from the breach, and the court will determine the amount and the validity of the claim as of the date of the breach. 11 U.S.C. Section 502(b). However, the creditor’s claim that it is entitled to retain Ms. Davies’ $400 in payments as liquidated damages for her breach is without merit. Neither may that sum be earmarked as a setoff for damages suffered. The liquidated damages clause in the contract between the parties is invalid for two reasons. First, it is in the form of a penalty. Second, it is impermissible because anticipated damages were ascertainable at the time the contract was formed. In arriving at the foregoing conclusion we have relied on the law of" } ]

[ { "docid": "16453239", "title": "", "text": "to § 502(b)(7) supported the limitation of its applicability to certain types of employment contracts). Under the same reasoning, the language of the statute resoundingly defeats Beck’s alternative argument. To be sure, a number of reported decisions making passing reference to § 502(b)(7) as being triggered by the post -petition rejection of an employment contract by a debtor-employer. See, e.g., In re Prospect Hill Resources, Inc., 837 F.2d at 455; In re Gee & Missler Services, Inc., 62 B.R. 841, 845 (Bankr.E.D. Mich.1986); In re Continental Airlines Corp., 64 B.R. at 873. However, none of these cases involved a claim based upon a pre -petition termination of an employment contract; thus, the wording of the rulings might well be attributed to stylistic imprecision. Beyond this, the problem with this alternative limitation is, again, that the statute does not provide for it. Section 502(b)(7) is not limited to claims arising from post-petition rejection pursuant to 11 U.S.C. § 365(a); the statute uses the word “termination,” a word with a significance much broader than the bankruptcy-law term of art “rejection.” Further, the statute makes no reference to § 365(a). In using the more-inclusive word “termination,” Congress manifested its intent to extend the cap of § 502(b)(7) to claims arising from pre-petition terminations. The scanty legislative history for § 502(b)(7) further supports the conclusion: [§ 501(b)(7)] tracks the landlord limitation on damages provision in [§ 502(b)(6) ] for damages resulting from the breach by the debtor of an employment contract ... H.R.REP. No. 595, 95th Cong., 1st Sess. 354 (1977); S.REP. No. 989, 95th Cong.2d Sess. 64-65 (1978) (emphasis added). This reference to breach of contract, a common-law concept which has no inherent relationship to bankruptcy, is very important. Clearly, had Congress intended to limit § 502(b)(7) to post-petition claims arising from a debtor’s or a trustee’s use of § 365(a) remedies, it would have referred to that very specific triggering event on the face of the statute, or in its own pre-en-actment committee reports. Thus, Beck cannot avoid the application of § 502(b)(7) to at least one of his claims against Pineapple." }, { "docid": "18493902", "title": "", "text": "discretion of the court. In re Chips & Twigs, Inc., 58 B.R. 109, 110-11 (Bankr.E.D.Pa.1986). Most courts postpone actual payment until confirmation of a plan. See, e.g., In re Cardinal Indus., Inc., 109 B.R. 738 (Bankr.S.D.Ohio 1989) (payment of post-rejection rent claims and all other administrative claims should be deferred to confirmation); In re Budget Uniform, Inc., 71 B.R. 652, 654 (Bankr.E.D.Pa 1987) (administrative claims “must wait for confirmation of a plan before becoming entitled to payment”). To qualify for exceptional immediate payment, a creditor must show that “there is a necessity to pay and not merely that the Debtor has the ability to pay.” In re Ionosphere Clubs, Inc., 98 B.R. 174, 178-79 (Bankr.S.D.N.Y.1989). Movants have not shown they are entitled to payment ahead of other administrative claimants. B. First Fidelity’s Breach of Contract Claim The rejection of a lease under section 365(d)(2) relates back to the date immediately prior to the filing date. 11 U.S.C. § 365(g)(1); Aslan v. Sycamore Inv. Co. (In re Aslan), 909 F.2d 367, 371 (9th Cir.1990). “[Section] 502(g) also provides that any claim, e.g. a claim for breach of the lease, which arises as a result of rejection under [section] 365 shall be treated the same as if such claim had arisen before the date of the filing of the petition.” Kopo low v. P.M. Holding Corp. (In re Modern Textile, Inc.), 900 F.2d 1184, 1191 (8th Cir.1990). Because the rejection constitutes a pre-petition breach, the damages are paid with other general unsecured claims. See Air Line Pilots Ass’n Int’l v. Continental Airlines Inc. (In re Continental Airlines Corp.), 901 F.2d 1259, 1260 (5th Cir.1990). Damages are determined under applicable state law. Landsing Diversified Properties-II v. First Nat’l Bank and Trust Co. of Tulsa (In re Western Real Estate Fund, Inc.), 922 F.2d 592 (10th Cir.1990). The Lease provides that New York State law governs. Aircraft Lease, Sec. 10.10. In Greasy Spoon Inc. v. Jefferson Towers, Inc., the Court of Appeals of New York had the occasion to discuss breach of lease damage claims and lease provisions limiting the parties’ remedies under the" }, { "docid": "9330267", "title": "", "text": "the filing of the petition. 11 U.S.C. § 365(g)(1); Int’l Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America v. IML Freight, Inc., 789 F.2d 1460, 1463 (10th Cir.1986). In simplistic terms, Coke argues that there was no binding contract until it was assumed either by Feyline or the Trustee. Since the contract was not assumed it was rejected and deemed breached by Feyline as of a date immediately prior to the filing of the petition. Therefore, Coke asserts, there essentially was no contract to which it was bound to perform and its failure to perform the nonexisting contract cannot give rise to a claim for damages for breach thereof. The Court does not agree. In the Court’s view, an executory contract under Chapter 11 is not enforceable against the debtor party, but is enforceable against the nondebtor party prior to the debtor’s assumption or rejection of the contract. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 532, 104 S.Ct. 1188, 1199, 79 L.Ed. 2d 482 (1984); In re Whitcomb & Keller Mortgage Co., 715 F.2d 375, 378 (7th Cir.1983); In re Cochise College Park, Inc., 703 F.2d 1339, 1354 (9th Cir.1983). Bordewieck, The Postpetition, Pre-Rejection, Pre-Assumption Status of an Executory Contract, 59 Am.Bankr.L.J. 197, 200 (1985). It is the clear policy of the Bankruptcy Code that a debtor is to have a “breathing space” following a filing of a petition, continuing until confirmation of the plan, in which to choose to assume or reject an executory contract. In that interim period, as in fact occurred here, the parties to the contract may continue to perform their respective roles. Without question, the breathing spell afforded by 11 U.S.C. § 365(d) can impose a penalty on the other party to the contract. However, that party has a remedy and that remedy is to move, pursuant to Section 365(d)(2), for an order requiring the debtor to make an early election. In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891, 16 C.B.C. 2d 1116 (Bankr.E.D.Pa.1987). In the present case, Coke did not avail itself of that provision of the statute. Instead, it" }, { "docid": "1159289", "title": "", "text": "ORDER DONALD J. PORTER, Chief Judge. Debtors have appealed from an order of the bankruptcy court, dated July 3, 1985, 50 B.R. 307, which held that the debtors’ contract for sale of land with First National Bank is an executory contract and must be assumed or rejected under § 365 of the Bankruptcy Code. 11 U.S.C. § 365 (1982). The parties agree that the question of whether a contract for deed is an executory contract or security agreement is governed by state law. See Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); In re Britton, 43 B.R. 605 (Bankr.E.D.Mich.1984). An executory contract is one in which a failure to perform by either party would “constitute a material breach, excusing performance of the other.” In re Knutson, 563 F.2d 916 (8th Cir.1977) quoting Countryman, Executory Contracts in Bankruptcy: Part I 57 Minn.L.Rev. 439, 460 (1973). In South Dakota, the right of the vendor to receive payment and the right of the vendee to take merchantable title upon completion of those payments are dependent covenants. Walsh v. Bellamy, 68 S.D. 291, 294, 2 N.W.2d 102, 103 (1942). Failure of either party to perform is a material breach ex cusing the other’s performance under South Dakota law. Therefore, a contract for the sale of land is an executory contract. For the reasons stated above, it is ORDERED that the bankruptcy court’s order of July 3, 1985, ruling that debtors’ contract for sale of land is an executory contract, is in all respects AFFIRMED." }, { "docid": "6855955", "title": "", "text": "Court is a court of equity, as well as a court of law. It would be inequitable to allow a greedy debtor to seek the equitable protection of this Court when her major motivation is to cut off the equitable remedies of her employer. For that reason this Court finds that there is not “cause” to reject this contract, if the major motivation of the debtor in filing the case was to be able to perform under the more lucrative A Team contract. It is clear that for Carrere this is the major motivation, even if it is not the sole motivation. Therefore, rejection is denied for lack of cause. Rejection Would Not Relieve the Debtor of a Possible Negative Injunction There is yet another issue that arises and impacts on the ultimate outcome of such cases: if rejection were permitted, what would be its effect on the creditor’s right to seek a negative injunction against the debtor? Rejection of an executory contract constitutes a breach, which is deemed to have occurred immediately before the date of the filing of the petition (11 U.S.C. § 365(g)(1)). The claim for monetary damages thus becomes a claim in the estate (11 U.S.C. § 502(g)). But a rejection under the Bankruptcy Code only affects the monetary rights of the creditor. It does not disturb equitable, non-monetary rights that the creditor may have against the debtor because of the breach of contract. This issue was raised in In re Mercury Homes Development Co., 4 Bankr.Ct.Dec. (CRR) 837 (Bankr.N.D.Ca.1978). The debt- or/vendor of a condominium rejected the land sale contract. The buyer requested specific performance; the trustee argued that the only remedy left to the buyer was his unsecured claim for monetary damages. The court rejected the trustee’s argument and held that the buyer was entitled to enforce the equitable remedies given to it by state law. While the Mercury Homes case does not differentiate between the equitable rights that the aggrieved party has against the debtor and those that he has against the trustee, the Court finds no reason in this situation to make" }, { "docid": "8330354", "title": "", "text": "BAP 1986), the court, while noting that the bankruptcy court’s decision in Waldron had been reversed, cited with approval the court’s holding in that case that an option contract to purchase real estate was an executory contract subject to rejection. The Ninth Circuit Bankruptcy Appellate Panel applied this reasoning to hold that a right of first refusal for the purchase of real property given by the debtor was an executory contract within the meaning of § 365. See also In re G-N Partners, 48 B.R. 462 (Bankr.D.Minn.1985), in which the court held that an option contract in which the debtor was the prospective purchaser was executory in view of the purpose behind § 365 of allowing the debtor’s estate to assume those agreements which are beneficial and to reject those which are not. “[Ojption contracts are generally executory contracts until the option is exercised ...” In re Rehbein, 60 B.R. 436, 441, n. 6 (9th Cir. BAP 1986). Several other courts have held that a land sale contract which the debtor-vendor sought to reject was exec-utory even when the purchase price due under the contract had been tendered, but when neither title nor possession had been transferred and no order for specific performance had been entered. In re Alexander, 670 F.2d 885 (9th Cir.1982); In re W. & L. Associates, Inc., 71 B.R. 962 (Bankr.E.D.Pa.1987). Mr. and Mrs. Phipps argue that, because they would be entitled to specific enforcement of the option contract, that contract is not executory and cannot be rejected under § 365, citing In re Lewis, 94 B.R. 789 (Bankr.D.Mass.1988). However, in Lubrizol, 756 F.2d at 1048, the Fourth Circuit specifically held that a contract could be subject to rejection under § 365 even if the remedy of specific performance for breach of that contract would be available were it not for the § 365 rejection. There is also language in Lubrizol indicating that a contract is not executory if one of the parties’ only obligation is to make fixed payments. Id. at 1046. In the present case, Mr. and Mrs. Phipps have the additional unperformed obligation" }, { "docid": "8330349", "title": "", "text": "contract. The debtors now seek to reject that option contract pursuant to 11 U.S.C. § 365 because they believe they can obtain a higher purchase price than the $65,000 set forth in the option contract and because they believe that obtaining a higher purchase price may be essential to their prospects for a successful reorganization. Section 365(a) of the Bankruptcy Code provides that a trustee, subject to the court’s approval, may assume or reject an executory contract. A chapter 12 debtor in possession has the same right to assume or reject under § 365 as the trustee. See 11 U.S.C. § 1107(a) and § 1203; Shaw v. Dawson, 48 B.R. 857, 859 (D.N.M.1985); In re Murtishi, 55 B.R. 564, 566 (Bankr.N.D.Ill. 1985). The right of a debtor in possession to reject certain contracts is fundamental to the bankruptcy system because it provides a mechanism through which severe financial burdens may be lifted while the debtor attempts reorganization. See In re Sun City Investments, Inc., 89 B.R. 245, 248 (Bankr.M.D.Fla.1988). The purpose of § 365 is to enable a troubled debtor to take advantage of a contract that will benefit the estate by assuming it or, alternatively, to relieve the estate of a burdensome contract by rejecting it. In re Norquist, 43 B.R. 224, 225 (Bankr.E.D.Wash.1984). When an executory contract is rejected, the nondebtor party is entitled to treat the rejection as a breach and to file a claim for monetary, damages. See 11 U.S.C. § 365(g) and § 502(g); Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F.2d 1043, 1048 (4th Cir.1985), cert. denied, 475 U.S. 1057, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986). A contract may be rejected pursuant to § 365 only if it is executory. A contract is executory if performance is due to some extent on both sides. Lubrizol, 756 F.2d at 1045. The Fourth Circuit has adopted Professor Countryman’s more specific test under which a contract is exec-utory if the obligations of both the debtor and the other party to the contract are so far unperformed that the failure of either to complete the" }, { "docid": "3839926", "title": "", "text": "11365.08 (15th ed. 1985). Section 502(g) in particular provides: A claim arising from the rejection ... of an executory contract or unexpired lease of the debtor that has not been assumed shall be determined, and shall be allowed under ... this section or disallowed under ... this section, the same as if such claim had arisen before the date of the filing of the petition. In sum, the effect or purpose of rejection of an executory contract, in addition to relieving the debtor of burdensome future obligations while trying to recover financially, is to breach the contract and make the non-debtor party a creditor of the estate. In re Norquist, 43 B.R. 224, 225 (Bankr.E.D.Wash.1984). Therefore, if the non-debtor party’s claim has in fact arisen pre-petition due to debtor’s breach, there is no need for either section 502(g) or section 365(g) to thereby create a breach and make the other party a creditor. Rejection would not further the Code’s objectives in such a situation. As articulated by the 6th Circuit Court of Appeals in In re Jolly, 574 F.2d 349 (6th Cir.1978): The key, it seems, to deciphering the meaning of the executory contract rejection provisions, is to work backward, proceeding from an examination of the purposes rejection is expected to accomplish. If those objectives have already been accomplished, or if they can’t be accomplished through rejection, then the contract is not executory.... Id. at 351. It is not deemed an abuse of the bankruptcy process to file a Chapter 11 petition solely to reject an executory contract. In re Bofill, 25 B.R. 550, 552 (Bankr.S.D.N.Y.1982). Nevertheless, good faith debtors obligated under a contract in a situation similar to the case sub judice should find themselves in no better position under the bankruptcy laws than if they had pursued alternative remedies, e.g., an action for recission or reformation, in state court. See In re Marina Enterprises, Inc., 14 B.R. 327, 330 (Bankr.S.D.Fla.1981). To allow a debtor to reject a contract breached pre-petition would be tantamount to sanctioning the operation of section 365 as a treasure trove for such a rejecting" }, { "docid": "15261429", "title": "", "text": "re Stable Mews Associates, Inc., 41 B.R. 594, 596 (Bankr. S.D.N.Y.1984); (3) reconsidered- In re Cleve, 3 Bankr.Ct.Dec. 1217, 1220 (Bankr.S.D.Cal. 1977); (4) discharged or revoked- In re KMMCO, Inc., 40 B.R. 976, 977-978 (E.D.Mich.1984); (5) repudiated- In re Chicago, R.I. & P.R. Co., 604 F.2d 1002-1004 (7th Cir. 1979); (6) altered— In re TransAmerican Natural Gas Corp., 79 B.R. 663, 666 (Bankr.S.D.Tex.1987); In re Silver, 26 B.R. 526, 530 (Bankr.E.D.Pa.1983); (7) canceled— In re Allain, 59 B.R. 107, 108 (Bankr.W.D.La.1986); and (8) avoided— In re Cherry, 78 B.R. 65, 69 (Bankr.E.D.Pa.1987). Another alternative view of what section 365 does and does not do, espoused by several scholars, merely treats rejection as the estate’s decision not to assume the executory contract and therefore, rejection does not ipso facto terminate or otherwise end the contract. See Michael T. Andrew, Executory Contracts in Bankruptcy: Understanding “Rejection”, 59 U.Colo.L.Rev. 845 (1988); Jay Westbrook, A Functional Analysis of Executory Contracts, 74 Minn.L.Rev. 227 (1989); Michael T. Andrew, Executory Contracts Revisited: A Reply to Professor Westbrook, 62 U.Colo.Rev. 1 (1991). Professors Andrew and Westbrook note that the concept of rejection was created to protect the bankruptcy estate from inadvertently becoming administratively obligated on the debtor’s pre-petition contracts and leases. Under the Bankruptcy Code, administrative claims receive a higher priority for payment than pre-petition unsecured claims under 11 U.S.C. § 726(a). Thus, the bankruptcy estate is only hable to pay as an administrative claim on the contract of the debtor if that liability is expressly assumed, which then becomes elevated to administrative claim status. See e.g. Andrew, supra, at 881-882; Westbrook, supra, at 231, 330. Claims of parties to contracts that are rejected under sections 365(g) and 502(g) are treated as pre-petition unsecured claims, and therefore do not have priority over the claims of other administrative creditors. Both Professors note that the effect of rejection is to give rise to a remedy in the non-debtor party for breach of the rejected contract. This remedy is typically a right to money damages assertible as a general unsecured claim in the bankruptcy case. See Andrew, supra, at 866-878," }, { "docid": "18719288", "title": "", "text": "Contracts in Bankruptcy: Part I, 57 Minn.L.Rev. 439, 460 (1973), which defines an executory contract as “a contract under which the obligation of both the bankrupt and the other party are so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other.” The parties agree that the question of whether a contract for deed is an executory contract or a security agreement is governed by state law. The district court, 62 B.R. 61, noted that under South Dakota law the right of the contract vendor to receive payment and the right of the vendee to take merchantable title upon completion of those payments are dependent covenants. Walsh v. Bellamy, 68 S.D. 291, 294, 2 N.W.2d 102, 103 (1942). The district court concluded that the failure of either party to perform is a material breach excusing the other's performance under South Dakota law and that a contract for the sale of real estate is thus an executory contract. We have considered the cases cited by Debtors that hold that a contract for deed should be deemed a secured debt rather than as an executory contract within the meaning of 11 U.S.C. § 365. See In re Adolphsen, 38 B.R. 776 (Bankr.D.Minn. 1983); In re Flores, 32 B.R. 455 (Bankr.S. D.Tex.1983); Matter of Patch Graphics, 32 B.R. 373 (Bankr.W.D.Wis.1983); Matter of Cox, 28 B.R. 588 (Bankr.D.Idaho 1983); In re Booth, 19 B.R. 53 (Bankr.D.Utah 1982). We defer to the district court’s interpretation of South Dakota law, however, and we agree with its holding that the contract in question is an executory contract that must be accepted or rejected pursuant to 11 U.S.C. § 365. Affirmed. . The Honorable Peder K. Ecker, United States Bankruptcy Judge for the District of South Dakota. . The Honorable Donald J. Porter, Chief District Judge for the District of South Dakota. . This court adopted Professor Countryman’s definition in In Re Knutson, 563 F.2d 916, 917 (8th Cir.1977). See also Jenson v. Continental Financial Corp., 591 F.2d 477, 481 (8th Cir. 1979)." }, { "docid": "15261428", "title": "", "text": "either to complete performance would constitute a material breach excusing the performance of the other.” See Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn.L.Rev. 439, 460 (1973). Under section 365, a trustee or a debtor-in-possession may, subject to court approval, assume or reject an executory contract of the debtor. See 11 U.S.C. §§ 365(a) and 1107(a). “Rejection” constitutes a breach of the lease or contract by the debtor. 11 U.S.C. § 365(g). This rejection claim is treated as if it arose before the filing of the bankruptcy petition. 11 U.S.C. § 502(g). That rejection ultimately occurred here, however, does not answer the questions of whether the Creditor breached its repurchase obligation under Paragraph 29 of the Agreement, and whether prior to rejection, the Debtor breached Paragraph 29 by failing to timely complete its performance of conditions precedent to the Creditor’s duties to repurchase. “Rejection” has been loosely and variously described in the cases as causing contract obligations to be: (1) released— NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 (1984); (2) repealed— In re Stable Mews Associates, Inc., 41 B.R. 594, 596 (Bankr. S.D.N.Y.1984); (3) reconsidered- In re Cleve, 3 Bankr.Ct.Dec. 1217, 1220 (Bankr.S.D.Cal. 1977); (4) discharged or revoked- In re KMMCO, Inc., 40 B.R. 976, 977-978 (E.D.Mich.1984); (5) repudiated- In re Chicago, R.I. & P.R. Co., 604 F.2d 1002-1004 (7th Cir. 1979); (6) altered— In re TransAmerican Natural Gas Corp., 79 B.R. 663, 666 (Bankr.S.D.Tex.1987); In re Silver, 26 B.R. 526, 530 (Bankr.E.D.Pa.1983); (7) canceled— In re Allain, 59 B.R. 107, 108 (Bankr.W.D.La.1986); and (8) avoided— In re Cherry, 78 B.R. 65, 69 (Bankr.E.D.Pa.1987). Another alternative view of what section 365 does and does not do, espoused by several scholars, merely treats rejection as the estate’s decision not to assume the executory contract and therefore, rejection does not ipso facto terminate or otherwise end the contract. See Michael T. Andrew, Executory Contracts in Bankruptcy: Understanding “Rejection”, 59 U.Colo.L.Rev. 845 (1988); Jay Westbrook, A Functional Analysis of Executory Contracts, 74 Minn.L.Rev. 227 (1989); Michael T. Andrew, Executory Contracts Revisited: A Reply to Professor Westbrook, 62 U.Colo.Rev. 1 (1991)." }, { "docid": "10213091", "title": "", "text": "v. Truck Drivers Local Union No. 807, 431 F.Supp. 646, 656 (E.D.N.Y.1977), aff'd, 567 F.2d 237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978); General Drivers, Warehousemen and Helpers Local 89 v. Midwest Emery Freight System, Inc., 48 B.R. 566, 568 (Bankr.N.D.Ill.1985). 11 U.S.C. § 502(b)(1) provides: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or un-matured; ... As noted in In re Continental Airlines Corp., 57 B.R. 845, 849 (Bankr.S.D.Tex. 1985): The Bankruptcy Court must determine the allowability of claims for both summary judgment and estimation purposes by applying the appropriate substantive law which would be applied in the non-bankruptcy context. See, e.g., Woods-Tucker Leasing Corp. v. Hutcheson-In-gram Development Co., 642 F.2d 744, 748 n. 8 (5th Cir.1981); Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). See also Mazirow v. Grigsby, {In re White Motor Corp.), 44 B.R. 563 (ND.Ohio 1984). 3 Collier on Bankruptcy ¶ 502.02 at 502-27 to 29 (15th ed. 1987); Bordewieck & Countryman, The Rejection of Collective Bargaining Agreements by Chapter 11 Debtors, 57 Am.Bankr.L.J. 293, 330-31 (1983). Note, The Bankruptcy Law’s Effect on Collective Bargaining Agreements, 81 Colum.L.Rev. 391 (1981). In this case, the Committee’s claim for breach of the collective bargaining agreement is determined by reference to the federal common law of labor contracts which has developed under 29 U.S.C. § 185 (Labor Management Relations Act, § 301). Textile Workers v. Lincoln Mills of Alabama, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957). See Continental," }, { "docid": "10213090", "title": "", "text": "this section, the same as if such claim had arisen before the date of the filing of the petition. Pursuant to 11 U.S.C. § 365(g), the Committee’s claim for contract rejection damages is treated as a pre-petition claim for breach of contract: (g) Except as provided in subsections (h)(2) and (i)(2) of this section, the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title, immediately before the date of the filing of the petition; ... See also NLRB v. Bildisco and Bildisco, 465 U.S. 513, 530, 104 S.Ct. 1188, 1198, 79 L.Ed.2d 482 (Rehnquist, J., for the majority), 465 U.S. at 539 n. 8, 104 S.Ct. at 1203 n. 8 (Brennan, J., concurring in part and dissenting in part) (1984); Hall v. Perry, (In re Cochise College Park, Inc.), 703 F.2d 1339, 1352 (9th Cir.1983); Bohack Corporation v. Truck Drivers Local Union No. 807, 431 F.Supp. 646, 656 (E.D.N.Y.1977), aff'd, 567 F.2d 237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978); General Drivers, Warehousemen and Helpers Local 89 v. Midwest Emery Freight System, Inc., 48 B.R. 566, 568 (Bankr.N.D.Ill.1985). 11 U.S.C. § 502(b)(1) provides: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or un-matured; ... As noted in In re Continental Airlines Corp., 57 B.R. 845, 849 (Bankr.S.D.Tex. 1985): The Bankruptcy Court must determine the allowability of claims" }, { "docid": "16453238", "title": "", "text": "the cutoff of that application. Beyond this, the major difficulty with Vic Snyder is that, on its face, § 502(b)(7) contains no such qualification; there is no language expressly limiting the cap to claims based on post-petition terminations, or to both post-petition terminations and to pre-petition terminations which occurred within a specific time before the bankruptcy filing, after the occurrence of specified events, or after some other objectively-determinable deadline. Further, the legislative history to § 502(b)(7) contains no support for such a conclusion. The intent of Congress must be divined first from the face of the legislation which it passes. In re Groth, 69 B.R. 90, 92 (Bankr.D.Minn.1987). Congress has manifested no intent to limit the application of the § 502(b)(7) cap to claims arising after a specific point in a debtor-employer’s business history. Were the Court to adopt Beck’s proferred rationale to impose such a qualification, it would engage in an act of judicial legislation. Compare In re Continental Airlines Corp., 64 B.R. 865, 873 (Bankr.S.D.Tex.1986) (noting that neither language of nor legislative history to § 502(b)(7) supported the limitation of its applicability to certain types of employment contracts). Under the same reasoning, the language of the statute resoundingly defeats Beck’s alternative argument. To be sure, a number of reported decisions making passing reference to § 502(b)(7) as being triggered by the post -petition rejection of an employment contract by a debtor-employer. See, e.g., In re Prospect Hill Resources, Inc., 837 F.2d at 455; In re Gee & Missler Services, Inc., 62 B.R. 841, 845 (Bankr.E.D. Mich.1986); In re Continental Airlines Corp., 64 B.R. at 873. However, none of these cases involved a claim based upon a pre -petition termination of an employment contract; thus, the wording of the rulings might well be attributed to stylistic imprecision. Beyond this, the problem with this alternative limitation is, again, that the statute does not provide for it. Section 502(b)(7) is not limited to claims arising from post-petition rejection pursuant to 11 U.S.C. § 365(a); the statute uses the word “termination,” a word with a significance much broader than the bankruptcy-law term" }, { "docid": "9883026", "title": "", "text": "provisions reasonably estimate what are difficultly calculated future damages. Similarly, we do not consider this formula to be penal in nature. With a historic renewal rate of approximately ninety percent, the loss of one customer potentially has a recurring impact, particularly when the loss of referrals is also considered. Accordingly, we find the liquidated damages formula to be a reasonable means for determining damages, and thus in accordance with the law of South Dakota. Because the liquidated damages provisions satisfy South Dakota law, we now examine them under Minnesota law. See Part I, supra. Minnesota law in this area parallels that of South Dakota. See Gorco Constr. Co. v. Stein, 256 Minn. 476, 99 N.W.2d 69, 74-76 (1959). Accordingly, we find the liquidated damages provisions acceptable under Minnesota law and hold that the district court did not err in submitting to the jury an instruction which allowed the jury to award liquidated damages. ATTORNEYS’ FEES Appellants next challenge the award of attorneys’ fees in this case. The employment contracts stipulated: In the event of a breach by the employee of any of the covenants herein, the Company shall be entitled to recover all loss or damage thereby incurred, including, but not by way of limitations, costs of litigation and reasonable attorneys’ fees. Appellants argue that these provisions violate South Dakota Codified Laws Annotated § 15-17-10 (1990). We disagree. This statute refers only to “notes, bonds, mortgages, or other evidence of debt” and does not mention employment contracts. See Assman v. J.I. Case Credit Corp., 411 N.W.2d 668, 671 (S.D.1987). Moreover, appellants have not directed our attention toward any case law which holds that this statute applies to the situation before us. Citing South Dakota Codified Laws Annotated § 15-17-7 (1990), and Ofstead v. South Dakota Department of Transportation, 387 N.W.2d 539 (S.D.1986), appellants further contend that recovering attorneys’ fees requires specific statutory authorization. Appellants’ argument, however, ignores Assman v. J.I. Case Credit Corp., 411 N.W.2d 668 (S.D.1987), which recognized that “parties may generally contract for payment of attorney’s fees.” Id. at 671 (citations omitted). In Assman, the Supreme Court of" }, { "docid": "16453237", "title": "", "text": "provision to apply to breaches of contract occurring as a result of the bankruptcy or from an agreement rejected in the reorganization proceeding.” 23 B.R. at 187. It went on to suggest, somewhat vaguely, that a termination made “as part of a deepening financial problem” — apparently either pre- or post-petition — was the scenario to which the § 502(b)(7) cap was to apply. Id. The underlying rationale of Vic Snyder seems to be that a debtor is barred from asserting the cap of § 502(b)(7) for employment-termination claims which had arisen prior to some cutoff date, itself before the date of the employer’s bankruptcy filing. That cutoff date presumably is to be fixed by the Bankruptcy Court, in the exercise of some sort of equitable discretion. The Vic Snyder decision is an isolated holding, not explicitly followed in any other reported decision. It has several flaws. First, to the extent it would even countenance the application of the cap to a claim based on a pre-petition termination, it does not enunciate a standard for the cutoff of that application. Beyond this, the major difficulty with Vic Snyder is that, on its face, § 502(b)(7) contains no such qualification; there is no language expressly limiting the cap to claims based on post-petition terminations, or to both post-petition terminations and to pre-petition terminations which occurred within a specific time before the bankruptcy filing, after the occurrence of specified events, or after some other objectively-determinable deadline. Further, the legislative history to § 502(b)(7) contains no support for such a conclusion. The intent of Congress must be divined first from the face of the legislation which it passes. In re Groth, 69 B.R. 90, 92 (Bankr.D.Minn.1987). Congress has manifested no intent to limit the application of the § 502(b)(7) cap to claims arising after a specific point in a debtor-employer’s business history. Were the Court to adopt Beck’s proferred rationale to impose such a qualification, it would engage in an act of judicial legislation. Compare In re Continental Airlines Corp., 64 B.R. 865, 873 (Bankr.S.D.Tex.1986) (noting that neither language of nor legislative history" }, { "docid": "16987290", "title": "", "text": "1014, 1017-18 (Bkrtcy.E.D.N.Y.1995); see also 3 Collier on Bankruptcy (Lawrence P. King, et al. eds., 15th ed. 1996) (Collier) § 365.09[3] (breach is not termination of contract because, among other reasons, “[i]f rejection terminates the contract ... such termination may have consequences that affect parties other than [the parties] to the contract”); cf. In re Photo Promotion Assoc., 45 B.R. 878, 882 (S.D.N.Y.1985) (“bankruptcy courts as courts of equity, should look with disfavor on contract forfeitures”). See generally Michael T. Andrew, Executory Contracts in Bankruptcy: Understanding “Rejection,” 59 U.Colo.L.Rev. 845 (1988) (Andrew). Thus, “[Rejection merely frees the estate from the obligation to perform; it does not make the contract disappear.” In re The Drexel Burnham Lambert Group, 138 B.R. 687, 703 (Bkrtcy.S.D.N.Y.1992). Rejection is not the power to release, revoke, repudiate, void, avoid, cancel or terminate, or even to breach, contract obligations. Rather, rejection is a bankruptcy estate’s election to decline a contract or lease asset. It is a decision not to assume, not to obligate the estate on the contract or lease as the price of obtaining the continuing benefits of the non-debtor party’s performance. That decision leaves the non-debtor in the same position as all others who have dealt with the debtor, by giving rise to a presumption that the debt- or has ‘breached’ — i.e., will not perform— its obligations. The debtor’s obligations are unaffected, and provide the basis for a claim. Andrew, 59 U.Colo.L.Rev. at 931. Rejection gives rise to a remedy for breach of contract in the non-debtor party. The claim is treated as a pre-petition claim, affording creditors their proper priority. Under sections 365(g) and 502(g), the date of breach is set as the date immediately prior to the debtor’s filing for bankruptcy. See also 4 Collier § 502.08[2]. The Bankruptcy Code treats rejection as a breach so that the non-debtor party will have a viable claim against the debtor. However, the Code does not determine parties’ rights regarding the contract and subsequent breach. To determine these rights, we must turn to state law. See In re Yasin, 179 B.R. 43, 50 (Bkrtcy.S.D.N.Y.1995) (because" }, { "docid": "6855956", "title": "", "text": "date of the filing of the petition (11 U.S.C. § 365(g)(1)). The claim for monetary damages thus becomes a claim in the estate (11 U.S.C. § 502(g)). But a rejection under the Bankruptcy Code only affects the monetary rights of the creditor. It does not disturb equitable, non-monetary rights that the creditor may have against the debtor because of the breach of contract. This issue was raised in In re Mercury Homes Development Co., 4 Bankr.Ct.Dec. (CRR) 837 (Bankr.N.D.Ca.1978). The debt- or/vendor of a condominium rejected the land sale contract. The buyer requested specific performance; the trustee argued that the only remedy left to the buyer was his unsecured claim for monetary damages. The court rejected the trustee’s argument and held that the buyer was entitled to enforce the equitable remedies given to it by state law. While the Mercury Homes case does not differentiate between the equitable rights that the aggrieved party has against the debtor and those that he has against the trustee, the Court finds no reason in this situation to make any such distinction. California law has given ABC an equitable remedy: to seek a negative injunction against Carrere and thereby prevent her from performing elsewhere. Rejection of the ABC contract would not interfere with ABC’s rights to seek that equitable remedy. Rejection would merely categorize any claim for monetary damages as a pre-petition debt. Therefore, whether this Court were to allow rejection or not, Carrere cannot use the Bankruptcy Code to protect her from whatever non-monetary remedies are enforceable under state law. On both the legal and equitable grounds set forth above, Carrere’s Motion to Reject this contract is denied. . The practical issue raised here is whether Carrere may deprive ABC of a cause of action for a negative injunction if she seeks further employment under the A Team Contract. . The right of the Trustee or of the debtor-in-possession to possess and control property is created by the Bankruptcy Code (11 U.S.C. §§ 704(1), 1106, 1107). It grants standing to deal with “property of the estate.\" There is no right given to a" }, { "docid": "8344400", "title": "", "text": "executory, it generally includes contracts on which performance remains due to some extent on both sides.’ ” In re Alexander, 670 F.2d at 887 (quoting S.Rep. No. 989, 95th Cong., 2d Sess. 58, reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 5844). Sycamore’s choice to treat the contract as still in effect left both Aslan and Sycamore with unperformed contract obligations, namely Aslan’s obligation to provide Sycamore with the documents required by the contract, and Sycamore’s obligation to tender the purchase payment as soon as Aslan provided the documents. The executory contract was also never assumed. Thus, section 365(g)(1) applies and the only remaining issue is whether the relevant breach occurred in 1982, as the bankruptcy court held, or one day prior to the filing of Aslan’s bankruptcy petition, as the district court held. We review these conclusions of law de novo. In re Woodson Co., 813 F.2d 266, 270 (9th Cir.1987). We agree with the district court and hold that when the debtor secures rejection of a non-assumed executory contract under section 365(g)(1), the date of breach is the day immediately prior to the filing of the bankruptcy petition. We believe our conclusion is required by the clear language of section 365(g)(1), which provides that the breach resulting from rejection occurs “immediately before the date of the filing of the petition.” Our conclusion is amply supported by the views of the bankruptcy courts. See, e.g., In re Chi-Feng Huang, 23 B.R. 798, 803 (Bankr. 9th Cir.1982) (should bankruptcy court allow sellers-debtors to reject sales contract on remand, buyer’s damages would presumably include appreciation in value of property to date prior to bankruptcy petition); In re Besade, 76 B.R. 845, 848 (Bankr.M.D.Fla.1987) (buyer’s damages are fair market value less contract price, taking fair market value as fixed on the day before the bankruptcy filing). Aslan and the Trustee in Bankruptcy as amicus argue that if Aslan breached the contract, the relevant breach occurred in 1982, notwithstanding the language in section 365(g)(1) that places the breach immediately prior to rejection. They contend that nothing in the language of section 365(g)(1)" }, { "docid": "16987291", "title": "", "text": "price of obtaining the continuing benefits of the non-debtor party’s performance. That decision leaves the non-debtor in the same position as all others who have dealt with the debtor, by giving rise to a presumption that the debt- or has ‘breached’ — i.e., will not perform— its obligations. The debtor’s obligations are unaffected, and provide the basis for a claim. Andrew, 59 U.Colo.L.Rev. at 931. Rejection gives rise to a remedy for breach of contract in the non-debtor party. The claim is treated as a pre-petition claim, affording creditors their proper priority. Under sections 365(g) and 502(g), the date of breach is set as the date immediately prior to the debtor’s filing for bankruptcy. See also 4 Collier § 502.08[2]. The Bankruptcy Code treats rejection as a breach so that the non-debtor party will have a viable claim against the debtor. However, the Code does not determine parties’ rights regarding the contract and subsequent breach. To determine these rights, we must turn to state law. See In re Yasin, 179 B.R. 43, 50 (Bkrtcy.S.D.N.Y.1995) (because “rejection constitutes a statutory breach, but does not repudiate or terminate the [contract,] [t]he parties must ... resort to state law to determine their rights as a result of the breach”). MMIA claims that under New York law, a non-breaching party is discharged from all contractual obligations. We find this argument to be without merit for two reasons. First, under New York law, only “a breach in a contract which substantially defeats the purpose of that contract can be grounds for rescission. The non-breaching party will be discharged from the further performance of its obligations under the contract when the breach goes to the root of the contract.” Dept, of Economic Dev. v. Arthur Andersen & Co., 924 F.Supp. 449, 483 (S.D.N.Y.1996) (citations and quotation omitted). Put another way, a party is relieved of continued performance under a contract only when the other party’s breach is “material.” See Restatement (Second) of Contracts § 237 comment b (1979); Walter H.E. Jaeger, Williston on Contracts § 1455 (3rd ed. 1970). The breach in this case was not" } ]

[ { "docid": "18311308", "title": "", "text": "section 1001.” We consider the foregoing reasoning to be sound and applicable to this case. The F.B.I. had authority to investigate, and in that broad sense it had “jurisdiction.” However, it had no power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry. In this restrictive sense, the investigation of a possible violation of the criminal law is not a matter over which the F.B.I. exercises “jurisdiction.” It is in this more restrictive sense, we believe Congress intended to use the word “jurisdiction” in determining violations of § 1001. We believe the total view of the case law in this area supports our position. A reading of the cases indicates that the vast majority fall into one of the following classifications: (1) Giving of false information with the purpose of receiving a monetary or proprietary benefit. United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); De Casaus v. United States, 250 F.2d 150 (9 Cir. 1957); Ebeling v. United States, 248 F.2d 429 (8 Cir. 1957); United States v. Quirk, 167 F.Supp. 462 (E.D.Pa.1958); (2) The resisting of monetary claims by the United States by presentation of false information. United States v. McCue, 301 F.2d 452 (2 Cir. 1962); Neely v. United States, 300 F.2d 67 (9 Cir. 1962); Brandow v. United States, 268 F.2d 559 (9 Cir. 1959); Knowles v. United States, 224 F.2d 168 (10 Cir. 1955); Cohen v. United States, 201 F.2d 386 (9 Cir. 1953); (3) The seeking of some governmental privilege such as employment or security clearance on the basis of falsified information. Blake v. United States, 323 F.2d 245 (8 Cir. 1963); Ogden v. United States, 303 F.2d 724 (9 Cir. 1962); Alire v. United States, 313 F.2d 31 (10 Cir. 1962); Pitts v. United States, 263 F.2d 353 (9 Cir. 1959); Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133 (1948); United States v. Giarraputo, 140 F.Supp. 831 (E.D. N.Y.1956); (4) The giving of false information which frustrates lawful regulation. United States v. Gilliland, 312 U." } ]

[ { "docid": "23669245", "title": "", "text": "justified by its legislative history. Because its history is detailed in United States v. Bramblett (1955) 348 U.S. 503, 504-08, 75 S.Ct. 504, 99 L.Ed. 594, and United States v. Gilliland (1941) 312 U.S. 86, 93-95, 61 S.Ct. 518, 85 L.Ed. 598, we simply sketch the highlights. Section 1001 originated more than 100 years ago in a statute drawn to penalize persons who made fraudulent claims for money against the Government. The statute was amended in 1934 “to embrace false and fraudulent statements or representations where these were knowingly and willfully used in documents or affidavits ‘in any matter within the jurisdiction of any department or agency of the United States.’ In this, there was no restriction to cases involving pecuniary or property loss to the government. The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” (United States v. Gil-liland, supra, 312 U.S. at 93, 161 S.Ct. at 522.) The statute was cast in its present form in 1948 without substantive revision. (United States v. Bram-blett, supra, 348 U.S. at 508, 75 S.Ct. 504, 99 L.Ed. 594.) From the statutory history, it is evident that section 1001 was not intended to reach all false statements made to governmental agencies and departments, but only those false statements that might support fraudulent claims against the Government, or that might pervert or corrupt the authorized functions of those agencies to whom the statements were made. Typical of the kind of statements that are within the purview of section 1001 are false reports of crime made to federal law enforcement agencies that may engender groundless federal investigations. (United States v. Adler (2d Cir. 1967) 380 F.2d 917, cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (false report of bribery made to FBI agent); Tzantarmos v. United States (9th Cir. 1968) 402 F.2d 163, cert. denied, 394 U. S. 966, 89 S.Ct. 1312, 22 L.Ed.2d 569 (1969) (false statement under oath to the Immigration and Naturalization Service to secure voluntary departure).) The statute was" }, { "docid": "1888620", "title": "", "text": "Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941). The amendment to the statute occurred during the New Deal period when government agencies began entering the field of economic regulation. Friedman v. United States, 374 F.2d 363, 366 (8th Cir. 1967). “For a proper functioning of their regulative and reform power these agencies depended upon information supplied by individuals and corporations with which they were dealing. The giving of false information to these agencies would, of course, seriously pervert their functions, making effective regulation impossible. . . . Obviously, the immediate and primary purpose in amending the old ‘fraudulent claims’ statute was to curtail the flow of false information to these newly created regulative agencies.” Id. Thus, included within the purview of the statute were statements which involved no pecuniary loss to the government but which by their falseness perverted the function of some government agency. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941). In 1948, the statute was put into its present form, the false statement provision becoming 18 U.S.C. § 1001. United States v. Bramblett, 348 U.S. 503, 508, 75 S.Ct. 504, 99 L.Ed. 594 (1955). Courts have applied this statute to oral as well as written statements and unsworn as well as sworn statements. United States v. Beacon Brass Company, Inc., 344 U.S. 43, 46, 73 S.Ct. 77, 97 L.Ed. 61 (1952); United States v. Ratner, 464 F.2d 101 (9th Cir. 1972); United States v. Adler, 380 F.2d 917 (2nd Cir. 1967), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1967). Moreover, for purposes of the statute, a false statement has been deemed to have been made in a manner within the jurisdiction of the federal agency even if it was not made to the agency itself, if inevitably the agency had been deceived. United States v. Candella, 487 F.2d 1223 (2nd Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974). Appellant correctly notes that certain • statements while materially false, have been held to fall beyond the parameters" }, { "docid": "1494480", "title": "", "text": "504, 99 L.Ed. 594 (1955) and United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941) we do not here undertake to repeat it at length. We note only that the statute which, in various forms, has been on the books for more than 100 years was originally designed to protect governmental agencies from fraudulent monetary claims. The statute was amended in 1934 and again in 1948 (to its present form) in order to eliminate the restriction of its scope to situations involving pecuniary or property loss to the government. As to the alteration with which we are concerned in this case the Supreme Court said: “The amendment eliminated the words ‘cheating and swindling’ and broadened the provision so as to leave no adequate basis for the limited construction which had previously obtained.. The statute was made to embrace false and fraudulent statements or representations where these were knowingly and willfully used in documents of affidavits ‘in any matter within the jurisdiction of any department or agency of the United States.’ In this, there was no restriction to cases involving pecuniary or property loss to the government. The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, supra at 93, 61 S.Ct. at 522. (emphasis added) In summary, then, it may fairly be said that running through this legislation is the congressional purpose not only to protect the government against false pecuniary claims, but, as well, to protect governmental agencies from perversion of their normal functioning. Clearly Lambert’s statement to the FBI did not comprehend a pecuniary claim against the government. The question then is whether his allegedly falsified report in any sense perverted the normal functioning of the FBI. We think not. Indeed when appellant went into the Tampa office of the FBI, he went to ask that agency to do what it normally does, that is, to investigate. The normal function of the FBI was to ascertain whether Lambert’s statements were true or" }, { "docid": "22810723", "title": "", "text": "not $25,000.00, and that any additional cost was in the form of improvements contributed by his own labors. The evidence also showed that while the investigation was in progress, the appellant contacted the real estate agent who handled the transaction, suggesting that he gave $10,000.00 in cash and “$10,000.00 in bulls and wet cows”. When the agent replied that he paid cash for the land, the appellant said in effect, “well, I guess you can’t help me.” Appellant attacks his conviction on count 2 on two grounds. First, that Section 1001, under which the indictment is laid, does not reach oral and voluntary statements made to investigating officers which are not required by law, rule or regulation to be given to an agency or department of the United States government. The statute says in effect that whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, or makes any false or fraudulent statements or representations, shall be punished as provided therein. Until the enactment of Section 1001, the law condemned only the making of false claims for the purpose of pecuniarily defrauding the government and the purpose of the Amendment in 1934, Act of June 18, 1934, 48 Stat. 996, was “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 522, 85 L.Ed. 598. See also United States v. Bramblett, 1955, 348 U.S. 503, 75 S.Ct. 504. The Gilliland case involved false statements made to the Department of Interior in pursuance of valid rules and regulations. The Bramblett case involved false and fraudulent representations made to the Disbursing Office of the House of Representatives, apparently for the purpose of obtaining disbursements for the defendant’s benefit. It is said, however, that a statement not made in obedience to law, rule or regulation is not a matter within the jurisdiction of a department or agency of the" }, { "docid": "8895399", "title": "", "text": "construction. [United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941).] Similarly, the Supreme Court in United States v. Bramblett, 348 U.S. 503, 507, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955), found “no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted”, and this court in United States v. McCue, supra, 301 F.2d at 455, rejected “any theory of narrow applicability.” Moreover, the Friedman majority’s restrictive interpretation of the word “jurisdiction” as used in § 1001 cannot be reconciled with the broad interpretation applied to other terms in the statute. The word “statement” has been construed to include statements not required to be made by law, not under oath, and not in writing. Neely v. United States, 300 F.2d 67, 93 A.L.R.2d 718 (9th Cir. 1962), cert. denied, 369 U.S. 864, 82 S.Ct. 1030, 8 L.Ed.2d 84 (1962); Cohen v. United States, 201 F.2d 386 (9th Cir. 1953), cert. denied, 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374 (1953); Marzani v. United States, 83 U.S.App.D.C. 78,168 F.2d 133 (1948), aff’d by an equally divided court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431 (1948). The word “agency” as used in § 1001 has been broadly interpreted by the courts to include the Disbursing Office of the House of Representatives, United States v. Bramblett, supra, and Army Post Exchanges, Brethauer v. United States, 333 F.2d 302 (8th Cir. 1964). In only the so-called “exculpatory no” cases have the courts shown a reluctance to extend § 1001 “to cover the investigation of criminal conduct,” Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962); United States v. Philippe, 173 F.Supp. 582 (S.D.N.Y.1959); United States v. Davey, 155 F.Supp. 175 (S.D.N.Y.1957); United States v. Stark, 131 F.Supp. 190 (D.Md.1955); United States v. Levin, 133 F.Supp. 88 (D.Colo.1953). As stated in Stark, supra, 131 F.Supp. at 207: The 5th Amendment provides that no person shall be compelled to be a witness against himself in criminal cases. While not strictly applicable" }, { "docid": "8895398", "title": "", "text": "Deal”), and that the courts had been reluctant “to interpret § 1001 to cover the investigation of criminal conduct.” If “jurisdiction” as used in the statute was not interpreted in this technical sense, the majority was fearful that, “anything more than a casual social conversation with a Government employee would, without warning, subject the speaker to the possibility of severe criminal punishment,” which could theoretically exceed the punishment for perjury. These possibilities, to the mind of the majority, might cause citizens to hesitate before giving information to police authorities, thereby frustrating the “important social policy that is served by an open line of communication between the general public and law enforcement agencies.” In the first case to reach the Supreme Court after § 1001 was amended into substantially its present form, the court stated that: The [1934] amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described. We see no reason why this apparent intention should be frustrated by construction. [United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941).] Similarly, the Supreme Court in United States v. Bramblett, 348 U.S. 503, 507, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955), found “no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted”, and this court in United States v. McCue, supra, 301 F.2d at 455, rejected “any theory of narrow applicability.” Moreover, the Friedman majority’s restrictive interpretation of the word “jurisdiction” as used in § 1001 cannot be reconciled with the broad interpretation applied to other terms in the statute. The word “statement” has been construed to include statements not required to be made by law, not under oath, and not in writing. Neely v. United States, 300 F.2d 67, 93 A.L.R.2d 718 (9th Cir. 1962), cert. denied, 369 U.S. 864, 82 S.Ct. 1030, 8 L.Ed.2d 84 (1962); Cohen v. United States, 201 F.2d 386 (9th Cir. 1953), cert. denied, 345 U.S. 951," }, { "docid": "3471322", "title": "", "text": "of 18 U.S.C. § 1001. Donovan’s conviction on the two mail fraud counts was affirmed in open court. D’Amato was found not guilty of mail fraud, but he was convicted of having made a false statement. His sentence was an 18-month term of probation on which sentence was stayed. . 18 U.S.C. § 1001: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . The statute derives from an Act of March 2, 1863, 12 Stat. 696, but attained its present form in 1934. 48 Stat. 996. See United States v. Bramblett, 348 U.S. 503, 504, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 93-95, 61 S.Ct. 518, 85 L.Ed. 598 (1941). . 18 U.S.C. § 6 provides: As used in this title: The term “department” means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. The term “agency” includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense. United States v. Bramblett, supra, rejected the claim that § 1001 applied only to the executive branch. . United States v. Bramblett, 348 U.S. at 504, 75 S.Ct. 504; United States v. Gilliland, 312 U.S. at 93-95, 61 S.Ct. 518; United States v. Isaacs, 493 F.2d 1124, 1156-1158 (7th Cir. 1974); United States v. Bedore, 455 F.2d 1109, 1111 (9th Cir. 1972); United States v. Simon," }, { "docid": "3296407", "title": "", "text": "was not placed in a situation where his only “safe harbor”, to use the phrase of United States v. Mandujano, 496 F.2d 1050, 1058 (5th Cir. 1974), cert. granted, 420 U.S. 989, 95 S.Ct. 1422, 43 L.Ed.2d 669 (1975), was a recourse to silence of which he had not been told. Although he claims to have been thrust upon the horns of, as Wigmore put it, a triceratops, 8 J. Wig-more, Evidence, § 2251 at 316 (McNaughton rev. 1961) — facing perjury, self-incrimination, or contempt — we find no such beast here. We have concluded that Chevoor faced only the alternatives of perjury or telling the truth. Self-incrimination was not a foreseeable possibility and, therefore, there was no right to remain silent as to which he should have been warned. For he was not liable for prosecution under 18 U.S.C. § 1001 when he entered the grand jury room. Instead, his responses to Vaules’ and Friedman’s questioning fall within the “exculpatory no” category of responses which are outside the scope of “statements” within the meaning of the statute. The statute from which § 1001 evolved originally prohibited false claims against the government and the use of false statements in support of such fraudulent claims. Act of March 2, 1863, 12 Stat. 696. In 1934, an amendment broadened the statute by dropping the restriction to pecuniary or proprietary loss to the United States. Act of June 18, 1934, 48 Stat. 996. This was meant primarily to protect the newly created federal regulatory agencies against fraudulent practices. The Supreme Court described the added scope as follows: “The amendment indicated congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941). The false claims section has since been split from the fraudulent statements section, Act of June 25, 1948, 62 Stat. 749, but none of the minor changes since 1934 have affected the substance of the statute, United States v. Bramblett, 348 U.S. 503, 75" }, { "docid": "3471319", "title": "", "text": "That section, as United States v. Bramblett, supra, made clear, “had its origin ... in the wake of a spate of frauds upon the Government” in Civil War times. 348 U.S. at 504, 75 S.Ct. at 506. It was originally a statute penalizing the presenting “for payment or approval” of false claims “upon or against the Government ... or any department or office . . . .” 348 U.S. at 504-505, 75 S.Ct. at 506. False statements were proscribed only if they were made “for the purpose of obtaining, or aiding in obtaining, the approval or payment of such claim . . . Id. While the statute was extended in immaterial respects in various codifications, it was not until 1918, 40 Stat. 1015, that false statements were proscribed if made “for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States” as well as if made for the purpose of obtaining payment of a false claim. 348 U.S. at 506 n. 2, 75 S.Ct. at 506. In the Act of June 18, 1934, 48 Stat. 996, at the urging of the Secretary of Interior, in connection with “hot oil” transportation, the words “cheating” and “swindling” were eliminated and the statute was no longer restricted to cases involving pecuniary or property loss to the Government. It was this amendment which the Supreme Court said in United States v. Gilliland, supra, indicated the congressional intent “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” 312 U.S. at 93, 61 S.Ct. at 522. But the Act of 1934 was still thought of, by the Court at least, “as a fitting complement” to those statutes “under which, in connection with the authorized action of governmental departments or agencies, the presentation of affidavits, documents, etc., is required.” Id. at 95—96, 61 S.Ct. at 523 (emphasis added). It was in the 1948 revision, Act of June 25, 1948, 62 Stat. 749, that the false claims and false statements sections were divided and assumed their present basic" }, { "docid": "23669244", "title": "", "text": "was not within the class of false statements that section 1001 was designed to proscribe. Section 1001 provides: “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, - shall be fined not more than $10,000 or imprisoned not more than five years, or both.” (Emphasis added.) If the italicized portion of section 1001 were read literally, virtually any false statement, sworn or unsworn, written or oral, made to a Government employee could be penalized as a felony. Thus read, section 1001 would swallow up perjury statutes and a plethora of other federal statutes proscribing the making of false representations in respect of specific agencies and activities of Government. Extension of section 1001 to its literal breadth, however, cannot be justified by its legislative history. Because its history is detailed in United States v. Bramblett (1955) 348 U.S. 503, 504-08, 75 S.Ct. 504, 99 L.Ed. 594, and United States v. Gilliland (1941) 312 U.S. 86, 93-95, 61 S.Ct. 518, 85 L.Ed. 598, we simply sketch the highlights. Section 1001 originated more than 100 years ago in a statute drawn to penalize persons who made fraudulent claims for money against the Government. The statute was amended in 1934 “to embrace false and fraudulent statements or representations where these were knowingly and willfully used in documents or affidavits ‘in any matter within the jurisdiction of any department or agency of the United States.’ In this, there was no restriction to cases involving pecuniary or property loss to the government. The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” (United States v. Gil-liland, supra, 312 U.S. at 93, 161 S.Ct. at 522.) The statute was cast in its present form" }, { "docid": "23297791", "title": "", "text": "presented. During the investigation mentioned, a special agent of the Intelligence Division of the Internal Revenue Service administered an oath to the appellant and propounded certain questions to him concerning the alleged illicit income which was the subject of the investigation. The answers of the appellant were essentially “No” or negative and these answers were later deemed to be false. This case squarely places before this Court the question of whether mere negative answers to certain questions propounded by Federal agents constitute “statements” within the meaning of that word as it appears in § 1001. An excellent review of the statute under consideration is set forth in United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); and United States v. Stark (D.C.Md., 1955) 131 F.Supp. 190. This section had its origin in a statute adopted about one hundred years ago in the “wake of a spate of frauds upon the Government”. In its original form the statute clearly related to the presentation of false claims against any component of the Government to any officer of the Government. In 1934, the statute was revised largely at the request of the Secretary of Interior to cover “hot oil” shipments in the State of Texas. The Gilliland case held that the 1934 amendment, which eliminated the words “cheating and swindling”, broadened the statute to its present form (with minor changes) and eliminated the restriction of its application to cases involving pecuniary or property loss to the Government. Thus the statute was broadened to include “any matter within the jurisdiction of any department or agency of the United States” and clearly showed “the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” It seems clear that the alleged false statements in Gilliland and the alleged false statements under consideration in the instant case would not have been within the terms of the statute prior to the 1934 amendment. Bramblett holds that" }, { "docid": "1888619", "title": "", "text": "sir. Appellant then asserts that this reponse was not within the class of false statements that § 1001 was designed to proscribe. The present 18 U.S.C. § 1001 has its origin in a statute passed almost one hundred years ago in the wake of a spate of frauds on the government. United States v. Bramblett, 348 U.S. 503, 504, 75 S.Ct. 504, 99 L.Ed. 594 (1955). The original provision clearly covered the presentation of false claims against any instrumentality of government to any officer of the government. Id. at 505. False statements made for the purpose of obtaining the approval of payment of any kind were also proscribed. Id. In 1934 the false statement section was amended so as to delete all words as to purpose and to insert “in any matter within the jurisdiction of any department or agency of the United States .” The statute was presumably revised so as to reach not only false statements in connection with claims against the government but also in connection with non-monetary frauds. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941). The amendment to the statute occurred during the New Deal period when government agencies began entering the field of economic regulation. Friedman v. United States, 374 F.2d 363, 366 (8th Cir. 1967). “For a proper functioning of their regulative and reform power these agencies depended upon information supplied by individuals and corporations with which they were dealing. The giving of false information to these agencies would, of course, seriously pervert their functions, making effective regulation impossible. . . . Obviously, the immediate and primary purpose in amending the old ‘fraudulent claims’ statute was to curtail the flow of false information to these newly created regulative agencies.” Id. Thus, included within the purview of the statute were statements which involved no pecuniary loss to the government but which by their falseness perverted the function of some government agency. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941). In 1948, the statute was put into its present form, the" }, { "docid": "3296409", "title": "", "text": "S.Ct. 504, 99 L.Ed. 594 (1955). Under Gilliland and Bramblett, the provision has a very broad scope. But in Friedman v. United States, 374 F.2d 363 (8th Cir. 1967), the court found that most prosecutions fell into four categories: (1) giving false information with the purpose of receiving a monetary or proprietary benefit, e. g., Bramblett, supra; (2) resisting monetary claims by the United States through the presentation of false information, e. g., United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); (3) seeking some governmental privilege such as employment or security clearance on the basis of falsified information, e. g., United States v. Marzani, 168 F.2d 133 (D.C. Cir.), aff’d by an equally divided court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431 (1948); and (4) giving false information to frustrate lawful regulation, e. g., Gilliland, supra. The courts have had difficulty in affirming coverage of F.B.I. investigations. Although differing rationales have been used, there is widespread agreement that mere negative responses to government initiated inquiries should not be included in the statutory proscription. Such utterances fall within neither of the dual categories of false statement intended, according to Gilliland and Bramblett, to be covered by the statute: those in support of fraudulent claims, and those tending to pervert the authorized functions of departments and agencies. Moreover, to allow § 1001 to cover such statements would undermine the safeguards that are normally provided in perjury prosecutions, primarily the formality of the oath, while permitting sanctions as great as those under perjury statutes. Cases involving the F.B.I. or U.S. Attorney initiating the questioning have uniformly held the statute not to cover the responses, although not always by the same rationale. The harder question, which is not involved in this case, arises when the defendant is indicted for going to the authorities to falsely initiate an investigation against a third party. This case involves a clear exculpatory denial situation. Chevoor had presented no false claim against the government, nor was this investigation relative to a claim the government might have had against him. The F.B.I." }, { "docid": "22810724", "title": "", "text": "statements or representations, shall be punished as provided therein. Until the enactment of Section 1001, the law condemned only the making of false claims for the purpose of pecuniarily defrauding the government and the purpose of the Amendment in 1934, Act of June 18, 1934, 48 Stat. 996, was “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 522, 85 L.Ed. 598. See also United States v. Bramblett, 1955, 348 U.S. 503, 75 S.Ct. 504. The Gilliland case involved false statements made to the Department of Interior in pursuance of valid rules and regulations. The Bramblett case involved false and fraudulent representations made to the Disbursing Office of the House of Representatives, apparently for the purpose of obtaining disbursements for the defendant’s benefit. It is said, however, that a statement not made in obedience to law, rule or regulation is not a matter within the jurisdiction of a department or agency of the United States within the meaning of the statute, and taking that view in United States v. Levin, 133 F.Supp. 88, from the District of Colorado, Judge Pickett dismissed an indictment based upon a false statement made to an agent of the Federal Bureau of Identification. Judge Chesnut was of like mind in United States v. Stark, 131 F.Supp. 190, also involving a statement to an agent of the Federal Bureau of Identification. Applying the rule of ejusdem generis, he construed the critical word “statement” in the statute as partaking of the word “representation” which followed it in the text. Given this connotation, the court took the view that in its statutory sense, the word “statement” contemplated an affirmative statement voluntarily made for the “purpose of making claim upon or inducing improper action by the government against others.” The identical question was presented under facts indistinguishably similar to ours in Cohen v. United States, 9 Cir., 201 F.2d 386. There, the court referred to Marzani v. United States, 83 U.S.App. D.C. 78, 168 F.2d 133, affirmed" }, { "docid": "3296408", "title": "", "text": "of the statute. The statute from which § 1001 evolved originally prohibited false claims against the government and the use of false statements in support of such fraudulent claims. Act of March 2, 1863, 12 Stat. 696. In 1934, an amendment broadened the statute by dropping the restriction to pecuniary or proprietary loss to the United States. Act of June 18, 1934, 48 Stat. 996. This was meant primarily to protect the newly created federal regulatory agencies against fraudulent practices. The Supreme Court described the added scope as follows: “The amendment indicated congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941). The false claims section has since been split from the fraudulent statements section, Act of June 25, 1948, 62 Stat. 749, but none of the minor changes since 1934 have affected the substance of the statute, United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). Under Gilliland and Bramblett, the provision has a very broad scope. But in Friedman v. United States, 374 F.2d 363 (8th Cir. 1967), the court found that most prosecutions fell into four categories: (1) giving false information with the purpose of receiving a monetary or proprietary benefit, e. g., Bramblett, supra; (2) resisting monetary claims by the United States through the presentation of false information, e. g., United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); (3) seeking some governmental privilege such as employment or security clearance on the basis of falsified information, e. g., United States v. Marzani, 168 F.2d 133 (D.C. Cir.), aff’d by an equally divided court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431 (1948); and (4) giving false information to frustrate lawful regulation, e. g., Gilliland, supra. The courts have had difficulty in affirming coverage of F.B.I. investigations. Although differing rationales have been used, there is widespread agreement that mere negative responses to government initiated inquiries should not" }, { "docid": "6340068", "title": "", "text": "understand this case, it should not be ignored that the false statement was but a small facet of the government’s original case. The initial indictment contained five counts including conspiracy with Oakley and one other defendant to misapply bank funds, misapplication of funds in connection with $360,540.90 loan to Oakley, and false bank entries. The charges against the two co-conspirators were dismissed on the government’s motion, as were all counts against Beer except for the misapplication of funds and the false statement. He was then acquitted of the former and convicted of the latter. Thus all the specific substantive charges were either tossed out or found to be unmeritorious. II Origin and Scope of § 1001 The origin and history of the false statement statute are thoroughly detailed in United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); and particularly in United States v. Stark, 131 F.Supp. 190 (D.Md., 1955). Enacted over a century ago in the “wake of a spate of frauds upon the Government”, the statute was clearly directed at false pecuniary claims against the United States. It remained in that form until 1934 when the Department of the Interior was experiencing great difficulty in regulating “hot oil” shipments. In order to provide a penal sanction for deliberately supplying false information to regulatory departments, the words “cheating and swindling” were deleted, and the statute was broadened to its present form to include “any matter within the jurisdiction of any department or agency of the United States”, manifesting “the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described”. The statute is necessarily couched in very broad terms. Congress could not hope to foresee the multitude and variety of deceptive practices which ingenious individuals might perpetrate upon an increasingly complex governmental machinery, a complexity that renders vital the truthful reporting of material data. When dealing with such a pervasive, all-encompassing statute, however, the courts must be extremely" }, { "docid": "22190383", "title": "", "text": "The evidence established that the stock in Chicago Co. was privately held, that Kerner had never owned any of its stock, and that Isidore Brown had never been involved with that company. Kerner also told the agents that the “Chicago Co.” transaction did not refer to Chicago Harness Racing Company and that his only transactions in racing stock involved CTE and BJC. After the conference with the IRS agents, Kerner called on his accountant the next morning and disclosed to him that Chicago Co. was really CHR. The evidence is more than sufficient to establish that the statements were false and were made knowingly and willfully. Kerner contends that oral conversational responses given in an interview with the investigative agents, while not under oath, do not suffice to support a § 1001 charge. The first problem is whether the statements were made in connection with a matter within the jurisdiction of a federal department or agency. The history of § 1001 has been reviewed at great length in many decisions. See e. g. United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598; United States v. Beacon Brass Co., Inc., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61; United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594; and United States v. Adler, 2 Cir., 380 F.2d 917, cert. denied 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602. For our purposes it suffices to note that § 35 of the Criminal Code, the predecessor of § 1001, originally condemned only false claims intended to defraud the United States of property. It was amended in 1934 “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” Gilliland, 312 U.S. at 93, 61 S.Ct. at 522. Hence, proof of pecuniary loss is no longer required. Ibid. Beacon Brass recognizes that there is no distinction between oral and written statements, 344 U.S. at 46, 73 S.Ct. 77. The 1948 revision, which put § 1001 in its present form, 62 Stat. 683, did not make" }, { "docid": "22190384", "title": "", "text": "v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598; United States v. Beacon Brass Co., Inc., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61; United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594; and United States v. Adler, 2 Cir., 380 F.2d 917, cert. denied 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602. For our purposes it suffices to note that § 35 of the Criminal Code, the predecessor of § 1001, originally condemned only false claims intended to defraud the United States of property. It was amended in 1934 “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” Gilliland, 312 U.S. at 93, 61 S.Ct. at 522. Hence, proof of pecuniary loss is no longer required. Ibid. Beacon Brass recognizes that there is no distinction between oral and written statements, 344 U.S. at 46, 73 S.Ct. 77. The 1948 revision, which put § 1001 in its present form, 62 Stat. 683, did not make any substantive change. Bramblett, 348 U.S. at 508, 75 S.Ct. 504. The statement need not be under oath. Adler, 380 F.2d at 922, and cases there cited. In Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 24 L.Ed.2d 264, the Court said: Because there is a valid legislative interest in protecting the integrity of official inquiries * * * we think the term “jurisdiction” should not be given a narrow or technical meaning for purposes of § 1001 * * *. A statutory basis for an agency’s request for information provides jurisdiction enough to punish fraudulent statements under § 1001. Kerner argues that the statute does not apply to statements made to investigating agents. Prime reliance is placed on Friedman v. United States, 8 Cir., 374 F.2d 363, which .involved a false statement to an FBI agent in an effort to initiate an investigation. From its review of the history of § 1001, the court concluded that the statute was intended to facilitate the proper functioning of regulatory agencies. The court pointed" }, { "docid": "2117568", "title": "", "text": "503, 506, 507-08, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955)). The impetus for this statutory amendment came from the Secretary of the Interior, who, under the pre-1934 statute, had been unable to enforce effectively provisions of the National Industrial Recovery Act of 1933 prohibiting interstate transportation of “hot oil.” The statutory amendment that the Secretary sought would provide him with the means to combat the “hot oil” frauds, and other departments and agencies with a weapon to eliminate similar abuses. See Bramblett, 348 U.S. at 507-08, 75 S.Ct. at 507; Gilliland, 312 U.S. at 93-95, 61 S.Ct. at 522-523; S.Rep. No. 1202, 73d Cong., 2d Sess. (1934) (amendment was designed to reach “hot oil” cases, and also cases involving contractors on Public Works Administration projects who falsified certificates as to the wages being paid); 78 Cong.Rec. 11270 (1934) (“There is nothing which permits us to make an investigation and prosecute persons who are engaged in the ‘kickback’ practice. They make false returns, claiming that they paid certain amounts to their employees, when they have not done so. This bill just amends the law so as to give the Federal Government authority to deal with that class of cases”) (emphasis added). The Supreme Court has stated that section 1001 should be construed broadly, and protects “myriad governmental activities.” See United States v. Rodgers, 466 U.S. 475, 480-81, 104 S.Ct. 1942, 1946-47, 80 L.Ed.2d 492 (1984); Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969); Bramblett, 348 U.S. at 507, 75 S.Ct. at 507. Section 1001 applies when a declarant makes false statements to a legislative entity to gain a monetary benefit, e.g., Bramblett, 348 U.S. at 504, 75 S.Ct. at 505 (former congressman violated § 1001 by falsely representing that a person was entitled to compensation as his clerk); gives false information to avoid payments due the government, e.g., United States v. Knox, 396 U.S. 77, 78, 90 S.Ct. 363, 364, 24 L.Ed.2d 275 (1969) (declarant made false statements on wagering tax forms); attempts to gain a governmental privilege, e.g., Pitts v. United" }, { "docid": "13433332", "title": "", "text": "this restriction and section 1001 now applies to “ ‘any false or fraudulent statements or representations’ * * * in any matter within the jurisdiction of any department or agency of the United States.” In United States v. Gilliland, 312 U.S. 86, at page 93, 61 S.Ct. 518, at page 522, 85 L.Ed. 598, the court said: “The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described. We see no reason why this apparent intention should be frustrated by construction.” See also: Cohen v. United States, 9 Cir., 1953, 201 F.2d 386. Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed 335 U.S. 985, 69 S.Ct. 299, 93 L.Ed. 431. United States v. Stark, D.C., 131 F.Supp. 190. From the history of section 1001, it is apparent that the statute has constantly been broadened in order to protect the government from the false claims or statements of those who knowingly and wilfully make such representations. The only other limitation seems to be that those statements must be given in a “matter within the jurisdiction of any department or agency of the United States” to which the statements are made. The Levin case, supra, is to the effect that there must be a legal obligation to make the statement which is falsified and without such legal obligation no crime is committed under section 1001. There is nothing in the section from which to infer such a conclusion. (1) In Cohen v. United States, supra, [201 F.2d 391] the court discussed the defendant-appellant’s contention that in order to preserve the constitutionality of the statute the courts have interpreted it and its earlier counterparts to apply only to statements alleged to be false which were required to be made by some law or regulation. The court said: “We do not agree. Although the particular false statements in issue in United States v. Gilliland, supra, were contained in reports and affidavits which were required to be made, the Supreme Court did not indicate that this" } ]

[ { "docid": "18371456", "title": "", "text": "handicapped children the right to a free appropriate public education”, 20 U.S.C. § 1412(1); 2. ) establishing a plan with a goal of providing “full educational opportunities to all handicapped children”, 20 U.S.C. § 1412(2)(A)(i), 45 C.F.R. § 121a.l23 (1980); and 3. ) implementing procedures assuring that “to the maximum extent appropriate, handicapped children . . . are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily”, 20 U.S.C. § 1412(5)(B) (emphasis added). Local educational agencies which receive EAHCA funds must “establish a goal of providing full educational opportunities to all handicapped children”, including the provision of special services “to the maximum extent practicable and consistent with the provisions of § 612(5)(B) [20 U.S.C. § 1412(5)(B)]”. 20 U.S.C. § 1414(a)(1)(C) (iv), 45 C.F.R. §§ 121a.222, 121a.227(a), 121a.304(a) (1980). The local agency is to further insure that “[i]n selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services which he or she needs”. Id., § 121a.552(d). Local agencies must establish, or revise, an individualized education program (IEP) for each handicapped child at the beginning of the school year and then review, and if appropriate, revise its provisions periodically, but not less than annually. 20 U.S.C. § 1414(a)(5), 45 C.F.R. §§ 121a.235, 121a.340-349 (1980). The procedural safeguards of the EAHCA allow for presentation of complaints regarding the provision of a free appropriate public education for a child and administrative proceedings whereby such complaints are aired and a final decision thereon is reached. 20 U.S.C. § 1415. Any party aggrieved by a final administrative decision may bring an action in state or federal court for a de novo determination of the merits of his claim. Id., § 1415(e)(2). The court is entitled to receive the administrative record, hear any additional evidence, and to render whatever relief it" } ]

[ { "docid": "22161432", "title": "", "text": "of the Handicapped Act (“EHA”) and today as IDEA, the law was passed “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(c). A free, appropriate public education “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruc tion.” Board of Education v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 3041-42, 73 L.Ed.2d 690 (1982). Among the specific conditions a state must satisfy is the requirement that it demonstrate that “all children residing in the State who are disabled, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated.” 20 U.S.C. § 1412(2)(C). See also 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. §§ 300.128(a)(1) and note 1, 300.220 and note, 300.300 note 3; N.J.A.C. 6:28-3.2. This is known as the “child find” duty. The primary mechanism for delivering a free appropriate education is the development of a detailed instruction plan, known as an Individual Education Program (“IEP”), for each child classified as disabled. 20 U.S.C. § 1401(18). To the extent possible, however, a school must “mainstream” disabled students — that is instruct them in a regular, not special, education setting. 20 U.S.C. § 1412(5). In addition to authorizing federal reviews of state and local compliance with IDEA, see 34 C.F.R. §§ 104.61, 100.7, IDEA’S provisions are enforced by affording certain procedural safeguards to parents. Parents may examine all relevant records concerning evaluation and placement of their children, 20 U.S.C. § 1415(b)(1)(A); must receive prior written notice when a school proposes or refuses to alter a placement, § 1415(b)(1)(C); may contest in an impartial due process hearing decisions regarding the education of their disabled child, §§ 1415(b)(1)(E), (2); and may obtain judicial review of an administrative decision, § 1415(e)(2). See Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 & n. 13" }, { "docid": "11899493", "title": "", "text": "placement for N.G. outside of DCPS. As is their right under the IDEA, Plaintiffs now seek reimbursement for the cost of three years of private school education for N.G. The District counters that the Hearing Officer’s decision was proper and should be upheld. Both parties have moved for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the complete administrative record in this case, the Court GRANTS Plaintiffs’ motion and DENIES Defendants’ cross motion. I. Legal Framework A. The Individuals with Disabilities Education Act (IDEA) The IDEA was enacted to assure that children with educational disabilities obtain a free appropriate public education (“FAPE”) designed to meet their unique needs. See 20 U.S.C. § 1400, et seq.; see Reid v. District of Columbia, 401 F.3d 516, 524 (D.C.Cir.2005). The Act requires participating states to educate a wide spectrum of disabled children, “from the marginally hearing impaired to the profoundly retarded and palsied.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 202, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other, with infinite variations in between. Id. To meet this goal, all public education agencies are required to have in effect policies and procedures to ensure that: All children with disabilities residing in the State, including children who are homeless or wards of the state and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated and a practical method is developed and implemented to determine which children are currently receiving needed special education and related services. 20 U.S.C. 1412(a)(3)(A). This mandate is known as the “Child Find” obligation, an affirmative obligation of every public school system to identify students who might be disabled and evaluate those students to determine whether they are indeed eligible. As soon as a child is identified as a potential candidate for" }, { "docid": "22445191", "title": "", "text": "CANBY, Circuit Judge. This appeal involves a dispute over the appropriate educational placement for Bion Jackson under the Individuals with Disabili- 20 U.S.C. ties Education Act (“IDEA”), § 1400 et seq. The district court granted summary judgment in favor of the Ojai Unified School District (“School District”) and the Ventura County Superintendent of Schools (“Superintendent”) (collectively “the school officials”). In so doing, the district court overruled an administrative' hearing officer’s decision that required Bion to be placed in a private school at public expense. We reverse and remand. I. STATUTORY FRAMEWORK Because this appeal requires us to interpret a complex web of federal and state statutes and regulations, a brief summary of the legal framework is necessary. The IDEA provides federal 'funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures. 20 U.S.C.A. § 1412 .(West 1990 & Supp.1993); Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179-80, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982), (describing evolution and major provisions of the act). The IDEA’S primary purpose is “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs[.]” 20 U.S.C.A. § 1400(c) (West Supp.1993). This purpose is achieved through the development of an .individualized education program (“IEP”) for each child with a disability. 20 U.S.C.A. § 1401(a)(18)(D) (West 1990). The IEP is crafted annually by a team that includes a representative of the local educational agency, the child’s teacher and parents, and, in appropriate cases, the child. 20 U.S.C.A. § 1414(a)(5) (West Supp.1993); 34 C.F.R. § 300.343(d) (1992). The IEP document must contain: information regarding the child’s present levels of performance; a statement of annual goals and short-term instructional objectives; a statement of the specific educational services to be provided and the extent to which the child can- participate in regular educational' programs; and objective criteria for measuring the student’s progress. 20 U.S.C.A. § 1401(a)(20) (West Supp.1993); 34 C.F.R. §" }, { "docid": "5291266", "title": "", "text": "the Organizational Defendants and Supervisor Defendants, claiming that their actions were reckless, extreme, outrageous, wanton, willful, malicious, and in conscious disregard of the risk of harm to Minor-Plaintiff AJM. Finally, Count XIV alleges civil conspiracy against all named Defendants, alleging that their concerted actions constituted a wrongful combination or agreement to do unlawful acts, or to do otherwise lawful acts by unlawful means. A.) Plaintiffs’ Federal Claims — Counts I-III ' I. The IDEA — Count III In 1970, Congress enacted the Education of the Handicapped Act (EHA), later renamed the Individuals with Disabilities Education Act (hereinafter, “the IDEA”), codified at Title 20 of the United States Code, sections 1400 et seq., to assure that all children with disabilities have available to them a free appropriate public education, which emphasizes special education and related services designed to meet their unique needs. The central purpose of the IDEA is to ensure that children with disabilities have a free appropriate public education (FAPE) and that their rights are protected. 20 U.S.C. § 1400(d). The IDEA conditions a state’s receipt of federal funds for special education programs on its implementation of “policies and procedures to ensure that ... [a] free appropriate public education is available to all children with disabilities....” 20 U.S.C. § 1412(a)(1)(A); Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir.2004). A free appropriate public education “ ‘consists of educational instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to ‘benefit’ from the instruction.’ ” W.B. v. Matulo, 67 F.3d 484, 491 (3d Cir.1995) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). The “primary vehicle” for implementing a free appropriate public education is the Individualized Educational Program (IEP). “The IEP consists of a detailed written statement arrived at by a multi-disciplin-ary team summarizing the child’s abilities, outlining the goals for the child’s education and specifying the services the child will receive.” Polk v. Cent." }, { "docid": "22834986", "title": "", "text": "Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Under the IDEA, states receiving federal funds are required to provide “all children with disabilities” a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A); Rowley, 458 U.S. at 180-81, 102 S.Ct. 3034. To meet these requirements, a school district’s program must provide “special education and related services tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak, 142 F.3d at 122 (quoting Rowley, 458 U.S. at 207, 102 S.Ct. 3034) (citation omitted). Such services must be administered according to an IEP, which school districts must implement annually. 20 U.S.C. § 1414(d). “To meet these obligations and to implement its own policies regarding the education of disabled children, [New York] has assigned responsibility for developing appropriate IEPs to local Committees on Special Education (‘CSE’), the members of which are appointed by school boards or the trustees of school districts.” Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp.1997-98) and Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir.1992)). In developing a particular child’s IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs. See N.Y. Comp.Codes R. & Regs, [hereinafter “N.Y.C.C.R.R.”] tit. 8, § 200.1(ww)(3)(i). In formulating an appropriate IEP, the CSE must also be mindful of the IDEA’S strong preference for “mainstreaming,” or educating children with disabilities “[t]o the maximum extent appropriate” alongside their non-disabled peers. 20 U.S.C. § 1412(a)(5); see Walczak, 142 F.3d at 132. New York defines this least restrictive environment as one that (1) provides the special education needed by the student (2) to the maximum extent appropriate with other students who do not have handicapping conditions, and (3) is as proximate as possible to the student’s place of residence. N.Y.C.C.R.R. tit. 8, § 200.1(cc). New York parents who disagree with their child’s IEP may challenge it" }, { "docid": "13374391", "title": "", "text": "subclasses may be certified and if so, thereafter to redetermine liability and appropriate relief. I. The IDEA provides federal funds to assist States and local agencies in educating children with disabilities “and conditions such funding upon a State’s compliance with extensive goals and procedures.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295-96, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (quoting Board of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). A “State” is defined to include the District of Columbia. 20 U.S.C. § 1401(31). One of the primary purposes of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education.” See id. § 1400(d)(1)(A); Alegria v. Dist. of Columbia, 391 F.3d 262, 263 (D.C.Cir.2004). The IDEA conditions the receipt of federal funding on there being “in effect policies and procedures to ensure” that all children residing therein between the ages of 3 and 21 have access to a “free appropriate public education” (“FAPE”). See 20 U.S.C. § 1412(a)(1)(A). A principal means of fulfilling this obligation is to establish a “Child Find” program under which children with disabilities in need of special education “are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” Id. § 1412(a)(3)(A). This in- eludes ensuring that “[c]hildren participating in early intervention programs ..., and who will participate in preschool programs ... experience a smooth and effective transition.... ” Id. § 1412(a)(9). The IDEA provides that “[cjhildren with disabilities and their parents are afforded the procedural safeguards required by section 1415 of this title.” Id. § 1412(a)(6). Section 1415 provides that there shall be “an opportunity for any party to present a complaint — (A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” Id. § 1415(b)(6)(A). Upon exhausting administrative remedies, “any party aggrieved by" }, { "docid": "23459255", "title": "", "text": "“receive the records of the administrative proceedings” and “bas[e their] decisions[s] on the preponderance of the evidence.” 20 U.S.C. § 1415(i)(2)(C). This means that “due weight” must be given to the administrative decision below and that courts must not “substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (“Rowley”); see also Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir.1995) (“The amount of deference accorded the hearing officer’s findings increases where they are thorough and careful.”) (internal quotations and citation omitted). III. Discussion A. Legal Background The IDEA was enacted in 1975 because of Congress’ belief that “the educational needs of millions of children with disabilities were not being fully met.” 20 U.S.C. § 1400(c)(2). The statute’s stated purposes include “to ensure that all children with disabilities have available to them a free appropriate public education ... designed to meet their unique needs and prepare them for further educational, employment, and independent living,” and “to ensure that the rights of children with disabilities and parents of such children are protected.” § 1400(d)(1)(A), (B). According to Senator Harrison Williams, the IDEA’S principal drafter, “[t]his measure fulfills the promise of the Constitution that ... handicapped children no longer will be left out.” 121 Cong. Rec. 37,413 (1975). One of the IDEA’S most important mechanisms for achieving these lofty goals is the formulation and implementation of IEPs. Under § 1414(d), every disabled child must have an IEP drafted and put into effect by the local educational authority. The IEP is to be formulated by a team that includes the child’s parents, regular and special education teachers, a district representative and other individuals with relevant expertise. § 1414(d)(1)(B). It must address such matters as the child’s present level of academic achievement, annual goals for the child, how progress toward those goals is to be measured and the services to be provided to the child. § 1414(d)(1)(A)®. The child’s parents" }, { "docid": "3784343", "title": "", "text": "§ 1400(d)(1)(A); see also MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523, 526 (4th Cir.2002). To receive federal funding under IDEA, the state must provide all children with disabilities a FAPE. 20 U.S.C. §§ 1400(c), 1412(a)(1). A FAPE requires the school district to provide instruction that suits the child’s needs as well as related services to ensure that the child receives some educational benefit from instruction. 20 U.S.C. § 1401(8); see also Md.Code Ann., Educ. § 8-402(a)(3) (defining FAPE); 20 U.S.C. § 1401(22) (defining related services). Under the act, the state must provide children with “meaningful access” to public education. Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The FAPE must only be “calculated to confer some educational benefit on a disabled child.” MM, 303 F.3d at 526 (citing Rowley, 458 U.S. at 207, 102 S.Ct. 3034) (emphasis added). The Supreme Court has held that under IDEA Congress intended to provide a satisfactory level of educational opportunity, not the best education that money could buy. See Rowley, 458 U.S. at 189, 102 S.Ct. 3034. The Court noted that “[w]hatever Congress meant by an ‘appropriate’ education, it is clear that it did not mean a potential-maximizing education.” Id. at 197 n. 21, 102 S.Ct. 3034; see also Hartmann v. Loudoun County Bd. of Ed., 118 F.3d 996, 1001 (4th Cir.1997) (“States must ... confer some educational benefit upon the handicapped child, but the Act does not require the furnishing of every special service necessary to maximize each handicapped child’s potential.”) (internal citations and quotation marks omitted). In addition to IDEA’S requirement that the state provide each student with some educational benefit, the student must be placed in the least restrictive environment to achieve the FAPE. The disabled child is to participate in the same activities as non-disabled children to the “maximum extent appropriate.” 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.550 (“That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only" }, { "docid": "2045234", "title": "", "text": "raised fact issues as to their § 504 claims and their § 1983 claims. I. Th.e Lances’ disability discrimination claims implicate three sources of federal law: IDEA, the Americans with Disabilities Act (“ADA”), and § 504. These statutes form a triptych in the school setting, guiding school administrators on how to best serve special-needs students. A. “IDEA requires states and local educational agencies receiving federal IDEA funds to make a [free appropriate public education] available to children with certain disabilities between the ages of 3 and 21.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290-91 (5th Cir.2005) (en banc). Specifically, IDEA requires each federally funded school district to: (1) provide each disabled child within its jurisdictional boundaries with a “free appropriate public education” [a “FAPE”] tailored to his unique needs, and (2) assure that such education is offered, to the greatest extent possible, in the educational “mainstream,” that is, side by side with non-disabled children, in the least restrictive environment [the “LRE”] consistent with the disabled student’s needs. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir.1997) (footnote omitted); 20 .U.S.C. §§ 1400(d)(1)(A), 1412(5). To achieve these goals, school districts — through an ARD — must implement an IEP, which is “a written statement prepared at a meeting attended by a qualified representative of the school district, a teacher, the child’s parents or guardians, and when appropriate, the child himself.” Cypress-Fairbanks, 118 F.3d at 247. An IEP need not “maximize the child’s educational potential”; it “guarantees only a basic floor of opportunity for every disabled child, consisting of specialized instruction and related services which are individually designed to provide educational benefit.” Id. at 247-48 (internal quotation marks omitted); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 203-04, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The IEP process is a collaborative effort, and the student’s parents are guaranteed procedural safeguards to ensure their involvement in the creation and implementation of their child’s IEP. See, e.g., 20 U.S.C. §§ 1400(d)(1)(B) (“The purposes of this chapter are" }, { "docid": "19919667", "title": "", "text": "to be brought. When analyzed in concert, the IDEA, New Mexico’s education laws, and NMMI’s unique status provide a complex legal backdrop with numerous interconnections, cross-definitions, and a few seeming contradictions. A Congress passed the IDEA, a federal spending statute, in response to concerns about the educational opportunities afforded disabled students. Considered an “ambitious federal effort to promote the education of handicapped children,” the IDEA “provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State’s compliance with [its] extensive goals and procedures.” See Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). At base, it “ensurefs] that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d). To this end, in order to receive federal funding the state must create an individualized education plan for each disabled child. 20 U.S.C. § 1412(a)(4); See O’Toole ex rel. O’Toole v. Olathe Dist. Schs. Unified Sell. Dist. No. 233, 144 F.3d 692, 698 (10th Cir.1998). Prepared at meetings between a representative of the local school district, the child’s teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (internal citations omitted); see 20 U.S.C. § 1414(d). Review of IEPs must occur at least annually, and are to be revised as appropriate. Id. By passing the IDEA, Congress also sought to “mainstream” disabled children, i.e., states must have a goal of providing “full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal.” § 1412(a)(2). Each child has a substantive right to receive his or her education in the “least restrictive environment.” See" }, { "docid": "7002491", "title": "", "text": "(3d Cir.1992). Where, however, the question is whether the District Court applied the correct legal standard, our review is plenary. Id. III. Discussion A. Statutory Framework IDEA establishes minimum requirements for the education of children with disabilities. The statute requires states to provide such children with a “free[and] appropriate public education,” which is based on the unique needs of each individual student. 20 U.S.C. § 1412. School districts achieve this goal by developing a detailed instructional plan, or an IEP, for each child who is classified as disabled. 20 U.S.C. § 1401(a)(18). An IEP consists of a specific statement of a student’s present abilities, goals for improvement of the student’s abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services. Id. at § 1401(a)(20). The Congressional purpose in enacting IDEA was to provide “access to a ‘free appropriate public education’ ... which ... is ... sufficient to confer some educational benefit upon the handicapped child.” Board of Education v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). In this way, the IEP provides a “basic floor of opportunity” but not necessarily “the optimal level of services.... ” Carlisle Area School v. Scott P. By and Through Bess P., 62 F.3d 520, 533-34 (3d Cir.1995). States that receive IDEA funding must create an administrative structure to develop IEPs. 20 U.S.C. § 1414(a)(5). In addition, states must establish procedural safeguards for children with disabilities and for their parents; among the most important of these safeguards is allowing parents to dispute the appropriateness of their child’s IEP through an impartial due process hearing. 20 U.S.C. § 1415. Under Pennsylvania law, an IEP is defined as “[A] written plan for the appropriate education of an exceptional student.” 22 Pa.Code § 14.31(b). The Commonwealth requires an IEP to include: 1) a statement of the student’s present levels of educational performance; 2) a statement of annual goals and short-term learning outcomes which are responsive to the learning needs identified in an evaluation report; and 3) a statement of the specific special education services" }, { "docid": "4746958", "title": "", "text": "Court has noted, many disabled children suffered under one of two equally ineffective approaches to their educational needs — either they were entirely excluded from public education, or they were placed in regular education classrooms with no assistance, left to fend for themselves in an environment inappropriate for their needs. Board of Educ. v. Rowley, 458 U.S. 176, 191, 102 S.Ct. 3034, 3043, 73 L.Ed.2d 690 (1982). Today, the educational rights of students with disabilities are created and protected primarily by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. In passing IDEA, Congress found that “it is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of children with disabilities in order to assure equal protection of the law.” 20 U.S.C. § 1400(b)(9). The federal government provides special education funds through IDEA to those states, such as Indiana, that choose to participate. In return, IDEA requires each state to ensure that an eligible disabled child between the ages of 3 and 21 receives a free appropriate public education (“FAPE”), 20 U.S.C. § 1412(2)(B). A FAPE encompasses special education and related services provided in the least restrictive environment in compliance with other requirements of IDEA, 20 U.S.C. § 1401(a)(18). In addition, IDEA contains extensive procedural requirements which center around the development by the local education agency of an individualized educational program (“IEP”) for each disabled child, 20 U.S.C. § 1412(5)(C). The local agency must develop an IEP for each classified student and must meet at least once a year to review and, if necessary, revise it, 20 U.S.C. § 1414(a)(5). Indiana has enacted both statutes and regulations to assist in the development of an IEP. See Ind.Ann.Code § 20-1-6-1 et seq. (West 1988); Ind.Admin.Code Tit. 511, r. 7-3 et seq. (1993) (hereinafter “IAC”). An IEP is developed in Indiana through a ease conference committee process. 511 IAC 7-10-3. This case conference is attended by the eligible child’s parents and involved professionals, and the IEP services are generally delivered at the local school or the" }, { "docid": "5425268", "title": "", "text": "the child is never enrolled in public school; or (2) that C.M.’s current enrollment in private school somehow limited the relief available to her under the IDEA. What is clear, however, is that the district court dismissed the parents’ IDEA claim for lack of subject matter jurisdiction. C.M.’s parents appeal. II. DISCUSSION Before addressing the parents’ appeal, we first discuss the IDEA and the procedures that should be followed in the state administrative hearing and federal district court. A The IDEA 1. Free and Appropriate Public Education The IDEA, as the successor to the Education of the Handicapped Act, represents “an ambitious federal effort to promote the education of handicapped children.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982). All children with disabilities, such as C.M.’s hearing impairment, “who, by reason thereof, need[] special education and related services” fall within the IDEA’S scope. 20 U.S.C. § 1401(3)(A) & (B). “Special education” means “specially designed instruction ... to meet the unique needs of a child with a disability,” and includes instruction in the classroom, home, physical education, and other settings. 20 U.S.C. § 1401(29)(A) & (B). “Related services” include “transportation, and such developmental, corrective, and other supportive services including speech- language pathology and audiology services ... as may be required to assist .a child with a disability to benefit from special education ....” 20 U.S.C. § 1401(26)(A) (internal parentheses omitted). The IDEA achieves its goals by guaranteeing students with disabilities a Free and Appropriate Public Education (“FAPE”). Loren F. v. Atlanta Independent Sch. Sys., 349 F.3d 1309, 1311 (11th Cir.2003); Sch. Bd. of Collier County v. K.C., 285 F.3d 977, 979 (11th Cir.2002); see 20 U.S.C. § 1400(d)(1)(A) (stating that a principal purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs”). In turn, a FAPE is defined as special education services that: (A) have been provided at public expense, under public" }, { "docid": "5985781", "title": "", "text": "School District Westchester County v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982). The Act was passed in order “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(e). States receiving federal funding under IDEA are required to comply with federal guidelines and regulations established to assure the availability of a “free appropriate public education” (sometimes referred to as FAPE) for all of their disabled children. Id. § 1412(1). They must develop a plan containing the policies and procedures which insure the provision of that right for all children “regardless of the severity of their handicap.” Id. § 1412(2)(C). The Act also requires participating states to educate handicapped children with non-handicapped children whenever possible. Id. § 1412(5); Rowley, 458 U.S. at 202-03, 102 S.Ct. at 3048-49. This congressional mandate, also embodied in federal and state regulations, is known as the “mainstreaming,” “inclusion,” or “least restrictive environment” requirement of IDEA. See Oberti v. Board of Educ., 995 F.2d 1204, 1206-07, 1213-15 (3d Cir.1993). “The use of ‘appropriate’ in the language of the Act, although by no means definitive, suggests that Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education.” Rowley, 458 U.S. at 197 n. 21, 102 S.Ct. at 3036 n. 21. Special education and related services must be tailored to the unique needs of the handicapped child by means of an individualized education program. Id. § 1401(a)(18). The IEP must be reviewed and revised by the local educational agency at least annually. Id. § 1414(a)(5). New Jersey participates in the federal funding program established by IDEA. That participation is reflected in state statutes, N.J.S.A. §§ 18A:46-1 to :46-46, and regulations, N.J.A.C. §§ 6:28-1 to -11. See Lascari v. Board of Educ., 116 N.J. 30, 34, 560 A.2d 1180, 1182 (1989). The New Jersey statutory scheme provides for the initial evaluation and" }, { "docid": "7757658", "title": "", "text": "in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The IDEA guarantees children with disabilities the right to a free appropriate public education (“FAPE”). 20 U.S.C. § 1400(d)(1)(A). In designing an appropriate education for students with disabilities, the child’s parents, teachers, school officials, and other professionals collaborate to develop an individualized education program (“IEP”) to meet the child’s unique needs. 20 U.S.C. § 1414(d)(1)(B). While the District of Columbia is required to provide Sarah with a public education, it does not “guarantee any particular level of education.” Bd. of Educ. of Hendrick Hudson Central Sch. Dist v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). If the parent objects “to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” he may seek an impartial due process hearing. 20 U.S.C. §§ 1415(b)(6), 1415(f)(1). If the parent is dissatisfied with the outcome of that hearing, he may appeal the decision to a state court or a federal district court. 20 U.S.C. § 1415(i)(2)(A). In evaluating a hearing officer’s decision, this Court must review the record of the administrative proceedings and give due weight to the hearing officer’s decision. 20 U.S.C. § 1415(i)(2)(B)(iii); 34 C.F.R. § 300.512(b)(3); Rowley, 458 U.S. at 206, 102 S.Ct. 3034. Moreover, the burden of proof is with the party challenging the administrative determination, who must “ ‘at least take on the burden of persuading the court that the hearing officer was wrong.’ ” Reid v. Dist. of Columbia, 401 F.3d 516, 521 (D.C.Cir.2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1988)). To determine whether a FAPE has been provided, courts must determine whether: (1) the school complied with the IDEA’S procedures; and (2) the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits. Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th Cir.2003). Even where a FAPE is not provided, however, courts can nevertheless deny reimbursement if a parent’s own actions" }, { "docid": "19537952", "title": "", "text": "Justice KAGAN delivered the opinion of the Court. The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq., ensures that children with disabilities receive needed special education services. One of its provisions, § 1415(l ), addresses the Act's relationship with other laws protecting those children. Section 1415(l ) makes clear that nothing in the IDEA \"restrict[s] or limit[s] the rights [or] remedies\" that other federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law \"seek[s] relief that is also available under\" the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures. In this case, we consider the scope of that exhaustion requirement. We hold that exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee-what the Act calls a \"free appropriate public education.\" § 1412(a)(1)(A). I A The IDEA offers federal funds to States in exchange for a commitment: to furnish a \"free appropriate public education\"-more concisely known as a FAPE-to all children with certain physical or intellectual disabilities. Ibid. ; see § 1401(3)(A)(i) (listing covered disabilities). As defined in the Act, a FAPE comprises \"special education and related services\"-both \"instruction\" tailored to meet a child's \"unique needs\" and sufficient \"supportive services\" to permit the child to benefit from that instruction. §§ 1401(9), (26), (29) ; see Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). An eligible child, as this Court has explained, acquires a \"substantive right\" to such an education once a State accepts the IDEA's financial assistance. Smith v. Robinson, 468 U.S. 992, 1010, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Under the IDEA, an \"individualized education program,\" called an IEP for short, serves as the \"primary vehicle\" for providing each child with the promised FAPE. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ; see §" }, { "docid": "3784342", "title": "", "text": "court reversed the ALJ’s ruling and granted summary judgment for the Bs. The lower court held that AB had not been provided a FAPE, and AACPS was obli-gáted to reimburse DB for two years of private school education. Because, as explained below, AACPS complied with IDEA and formulated an IEP reasonably calculated to provide AB with some educational benefit, we reverse the district court and direct that summary judgment be entered for Appellants. We also vacate the district court’s order insofar as it ordered AACPS to reimburse plaintiffs for AB’s placement at the Summit School for the 2000-2001 and 2001-2002 school years. I. A. This case involves the application of IDEA, a statute designed to provide free appropriate educational services to millions of children with learning disabilities in the United States. 20 U.S.C.A. § 1400. One of Congress’ primary purposes in enacting IDEA in 1990 was “to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs.... ” 20 U.S.C. § 1400(d)(1)(A); see also MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523, 526 (4th Cir.2002). To receive federal funding under IDEA, the state must provide all children with disabilities a FAPE. 20 U.S.C. §§ 1400(c), 1412(a)(1). A FAPE requires the school district to provide instruction that suits the child’s needs as well as related services to ensure that the child receives some educational benefit from instruction. 20 U.S.C. § 1401(8); see also Md.Code Ann., Educ. § 8-402(a)(3) (defining FAPE); 20 U.S.C. § 1401(22) (defining related services). Under the act, the state must provide children with “meaningful access” to public education. Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The FAPE must only be “calculated to confer some educational benefit on a disabled child.” MM, 303 F.3d at 526 (citing Rowley, 458 U.S. at 207, 102 S.Ct. 3034) (emphasis added). The Supreme Court has held that under IDEA Congress intended to provide a satisfactory level of educational" }, { "docid": "9462797", "title": "", "text": "for summary adjudication. II. Statutory Background The IDEA is “an ambitious federal effort” to “assist state[s] ... in educating [disabled] children.” Board of Educ. of Hendrick Hudson Cent Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To qualify for federal funds under the IDEA, a state must implement a plan which “assure[s] that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs....” 20 U.S.C.A. § 1400(c) (West Supp.1998). A “free and appropriate education” is one that is tailored to the unique needs of a particular child such that the child “benefit[s] educationally from [the] instruction.” Rowley, 458 U.S. at 203, 102 S.Ct. 3034. Local education agencies (“LEA”) ensure tailored educational services by generating an individualized education program (“IEP”) for each child in need of special education. 20 U.S.C. § 1414(a)(5) (1988 and Supp.1998). An IEP, prepared at a meeting between the child’s teacher, a school representative qualified in special education, and the child’s parents, is a written statement that includes the child’s present educational performance, lists annual goals and short-term instructional objectives, and describes the specific educational services that the child will receive to achieve those goals. 20 U.S.C.A. § 1401(a)(20) (West Supp.1998). Congress included a panoply of procedural safeguards to give parents an opportunity to have “meaningful” input in decisions about their child’s education. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see 20 U.S.C.A. § 1415(a) (West Supp.1998) (“Any ... educational agency ... which receives assistance ... shall establish ... procedures ... to assure that children with disabilities and their parents ... are guaranteed procedural safeguards with respect to the provision of free appropriate public education.... ”). Through these procedures, parents can, for example, present a complaint regarding “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to such child.” 20 U.S.C. § 1415(b)(1)(E) (1988). If parents choose, their objections and concerns may be heard" }, { "docid": "14184354", "title": "", "text": "“to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living .... ” 20 U.S.C. § 1400(d)(1)(A). State and local educational agencies are eligible for federal assistance if they have in effect policies and procedures to ensure that they provide a free appropriate public education (“FAPE”) to disabled students. Id. § 1412. The Supreme Court has held that in order to satisfy its duty to provide FAPE, a state or local educational agency must provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049, 73 L.Ed.2d 690 (1982). The Supreme Court has developed a test for determining whether a school board has provided FAPE in cases arising under the IDEA: “(1) whether the state actor has complied with the procedures set forth in the IDEA, and (2) whether the [individualized educational program] developed pursuant to the IDEA is reasonably calculated to enable the child to receive educational benefit.” Sch. Bd. v. K.C., 285 F.3d 977, 982 (2002) citing Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051. This standard, that the local school system must provide the child “some educational benefit,” Rowley, 458 U.S. at 200, 102 S.Ct. at 3048, has become known as the Rowley “basic floor of opportunity” standard. JSK v. Sch. Bd., 941 F.2d 1563, 1572-73 (11th Cir.1991) (“The ... educational outcome need not maximize the child’s education. If the educational benefits are adequate based on surrounding and supporting facts, [IDEA] requirements have been satisfied.”) (internal citations omitted). Specifically, the IDEA mandates that schools and parents together develop an individualized education program (“IEP”), a written statement for each disabled child that includes, inter alia, “a statement of the child’s present levels of academic achievement and functional performance ...; a statement of measurable annual goals ...; [and] a statement of the special education and related services ... to be provided" }, { "docid": "15558311", "title": "", "text": "that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 68, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999) (quoting 20 U.S.C. § 1400(C)) (internal quotation marks and citations omitted). Under the IDEA, federal money is available to “assist state and local agencies in educating handicapped children,” provided that the recipients of those funds comply with various provisions of the Act. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); 34 C.F.R. §§ 100.7, 104.61, (providing for federal monitoring of state and local compliance with the IDEA). Specifically, the IDEA provides for the creation of an IEP for each child as part of the child’s FAPE. 20 U.S.C. § 1414(d). The IEP is collaboratively developed among parents of the child, educators, and other specialists. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (noting that Congress “envision[ed] the IEP as the centerpiece of the statute’s education delivery system for disabled children”). Recognizing that “educational policy and practice are traditional State and local functions,” J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65 (2d Cir.2000), Congress left “implementation responsibilities” to the various state educational service agencies. Id. Because the “individualized education program team,” composed of parents and education professionals, 20 U.S.C. § 1414(d)(1)(B), cannot always agree on an appropriate IEP for the child, states are required to develop procedural safeguards to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig, 484 U.S. at 311— 12, 108 S.Ct. 592. In New York, parents who object to a proposed IEP may request an “impartial due process hearing” before a hearing officer. N.Y. Educ. Law § 4404(1). Subsequent to such a hearing, any aggrieved party may then appeal the decision of the hearing officer" } ]

[ { "docid": "11198575", "title": "", "text": "remaining two statements cited by plaintiffs —that “Backtrack” was comparable or superior in quality to “Flashback,” and that Andy Denemark (of Westwood One) was the creative force behind “Flashback”— constitute mere puffing and therefore are not actionable under the Lanham Act. Taken alone, the former statement would be puffing in that it appears to be an expression of opinion and not a representation of fact. See American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F.Supp. 1411, 1443-44 (E.D.N.C.1986); Wolf v. Louis Marx & Co., 203 U.S.P.Q. (BNA) 856, 859 (S.D.N.Y.1978). However, when read in conjunction with the other alleged misrepresentations, I cannot hold as a matter of law that the statement is not actionable. The question here is whether the statement, taken together with others assumed for the purposes of this motion to be false, would be read not as a comparison of two products with different origins, but rather as a statement that “Backtrack” was a new and improved edition of “Flashback,” issued from the same source. The latter statement, that a Westwood One employee was the creative force behind plaintiffs’ program, appears simply to be a statement of fact as to the source of the program. Accordingly, it can hardly be dismissed as mere puffing. The New York Civil Rights Law Claim (Count IV) Fomento urges that the use of his name in defendant’s false representations that he produced “Backtrack,” including the mislabelling of the “Backtrack” LP’s, violated Sections 50 and 51 of the New York Civil Rights Law which prohibit the unauthorized use of a person’s name, portrait or picture for advertising purposes or for the purposes of trade. Defendant argues that this claim should be dismissed because the mistaken producer credit on the “Backtrack” LP’s does not constitute a use of Formento’s name for advertising purposes or for purposes of trade. Defendant further claims that even if the mislabelling is deemed to be for advertising or for purposes of trade, it was incidental and therefore not actionable under the Civil Rights Law. Defendant’s contentions simply do not engage the allegations in the Amended Complaint, where Fomento" } ]

[ { "docid": "8834593", "title": "", "text": "the market with new, more sophisticated systems, a secondary market is forming for older model lasers in good condition. A perfectly reliable used Excimer laser can be purchased for almost half of the current asking price of a new Unit. FASC ¶ 51(e) & Exhibits 18, 20, and 25 (attached to the FASC) (emphasis added). Plaintiff asserts that this statement is false or misleading because it “leaves the misim-pression that ... the Summit lasers offered for sale by Hi-Line are perfectly reliable, when the lack of proper installation, service, testing, parts and gas means they are not rehable.” FASC ¶ 51(c). Defendant Hi-Line asserts that this statement is not actionable under the Lanham Act because it is mere “puffery” or opinion stated in general terms, not a specific statement of fact about the attributes of the product. As such, and as a matter of law, the statement is not a material statement expected to induce reasonable consumer rebanee. See Defendant Hi-Line’s Motion at 15 (citing Cook, 911 F.2d at 246). Puffery is often described as “involving outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude rebanee by consumers.” Cook, 911 F.2d at 246 (citing Metro Mobile CTS, Inc. v. Newvector Communications, Inc., 643 F.Supp. 1289 (D.Ariz.1986), rev’d without opinion, 803 F.2d 724 (9th Cir.1986)). In the FTC context, the Ninth Circuit has also defined “puffery” as “claims [which] are either vague or highly subjective.” Cook, 911 F.2d at 246 (quoting Sterling Drug, Inc. v. Federal Trade Commission, 741 F.2d 1146, 1150 (9th Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 143 (1985)); see also 3 McCarthy, § 27.04[4][d] (“ ‘Puffing may also consist of a general claim of superiority over a comparative product that is so vague, it wib be understood as a mere expression of opinion.’”). Thus, “advertising which merely states in general terms that one product is superior is not actionable.” Cook, 911 F.2d at 246 (quoting Smith-Victor Corp. v. Sylvania Electric Products, Inc., 242 F.Supp. 302, 308-09 (N.D.Ill.1965)); see also Lipton v. Nature Co., 71 F.3d 464, 474 (2d" }, { "docid": "22177784", "title": "", "text": "that defendants’ costs are lower than any competing attorney’s. It is beyond the realm of reason to assert, as plaintiffs do, that a reasonable consumer would interpret this as a factual claim upon which he or she could rely.” We agree with the district court that any implication that can be drawn from NCC’s advertisement regarding NCC’s lower costs and superiority over collection attorneys constitutes puffery and is not actionable as false advertising under Section 43(a) of the Lanham Act. In the FTC context, we have recognized puffery in advertising to be “claims [which] are either vague or highly subjective.” Sterling Drug, Inc. v. Federal Trade Commission, 741 F.2d 1146, 1150 (9th Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 143 (1985). The common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions. “[Advertising which merely states in general terms that one product is superior is not actionable.” Smith-Victor, 242 F.Supp. at 308. “However, misdescriptions of specific or absolute characteristics of a product are actionable.” Stiffel, 658 F.Supp. at 1115. In Smith-Victor, an advertiser’s statement that its lamps were “far brighter than any lamp ever before offered for home movies” was ruled puf-fery. However, when the advertiser quantified numerically the alleged superior brightness with statements such as “35,000 candle power and 10-hour life,” the court found a potential Lanham Act claim. 242 F.Supp. at 308-09. Here, the alleged misrepresentations in NCC’s advertisement are merely general in nature. The statement that “we’re the low cost commercial collection experts” and any implication that NCC has comparable services to attorneys at lower rates are general assertions of superiority rather than factual misrepresentations. The advertisement does not contain the kind of detailed or specific factual assertions that are necessary to state a false advertising cause of action under the Act. We agree with Magistrate Wilken that “it is beyond the realm of reason to assert ... that a reasonable consumer would interpret this as a factual claim upon which he or she could" }, { "docid": "14463074", "title": "", "text": "First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir.1999). Accordingly, “bald assertions of superiority or general statements of opinion” do not result in a violation of 15 U.S.C. § 1125(a). Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 496 (5th Cir.2000), cert. denied, 532 U.S. 920, 121 S.Ct. 1355, 149 L.Ed.2d 285 (2001). Similarly, statements that are “exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely” are more properly considered “puffery” and are not actionable under the Lanham Act’s false advertising provision. Southland Sod Farms, 108 F.3d at 1145. Other sources have described puffery as “a general claim of superiority over a comparative product that is so vague, it would be understood as a mere expression of opinion.” 4 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition § 27.38 (4th ed.1996). Plaintiff maintains that the “Compare to Body Solutions” statement on its own products does not make a detailed or specified assertion of measurable fact. As such, Plaintiff contends that the statement Defendants complain of is merely nonactionable “puffery.” The Court disagrees. This is not an instance where the alleged false advertising claims are broad assertions of superiority in the field. See, e.g., Pizza Hut. Inc., 227 F.3d at 491 (classifying the statement “Better ingredients. Better pizza.” as non-actionable puffery). Instead, by referencing a particular competing product, that is, the Body Solutions line, Plaintiffs invitation to “compare” does not qualify as a vague claim of superiority. See, e.g., Cartier, Inc. v. Deziner Wholesale L.L.C., 2000 WL 347171 at *4 (S.D.N.Y.2000) (finding, in a summary judgment motion, that a sunglasses label inviting consumers to compare its prices to another brand was misleading in that it either suggested that the two brands were affiliated or that the products were similar in quality); Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 37 (1st Cir.2000) (finding that advertisements with the tag line “compare to your detergent... whiter is not possible” was not mere puffery and denying the defendant’s motion to dismiss); Johnson & Johnson v. Quality Pure Mfg. Inc., 484" }, { "docid": "16174643", "title": "", "text": "out a prima facie case of false advertising under Section 43(a), the plaintiff must establish five elements: (1) A false or misleading statement of fact about a product; (2) Such statement either deceived or had the capacity to deceive a substantial segment of potential consumers; (3) The deception was material, in that it is likely to influence the consumer’s purchasing decision; (4) The product is in interstate commerce; and (5) The plaintiff has been or is likely to be injured as a result of the statement at issue. IQ Products Co. v. Pennzoil Products Co., 305 F.3d 368, 375 (5th Cir.2002). “The failure to prove the existence of any element of the prima facie case is fatal to the plaintiffs claim.” Pizza Hut, 227 F.3d at 495 (citations omitted). Statements that a product is better than the competition are typically deemed to be nonactionable puffery; however, statements as to the comparative safety of a product are specific and measurable, and thus frequently considered actionable. Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 496-97 (5th Cir.2000) (holding that claimed superiority of a product is vague and clearly represents an opinion, and is therefore non-actionable puffery); but see Guidance Endodontics, LLC v. Dentsply Int’l, Inc., 708 F.Supp.2d 1209, 1243 (D.N.M.2010) (noting that claims that a product is “safer” is measurable and specific, and therefore not mere puffery). The Third Amended Complaint outlines examples of Uber’s alleged misrepresentations that Plaintiffs allege are actionable under the Lanham Act. (Instrument No. 107 at 7). Plaintiffs argue that Defendant has disseminated misrepresentations with regard to the safety of its services, creating an uneven playing field in the marketplace, such that consumers choose Uber’s services over that of the Plaintiffs’. (Instrument No. 107 at 7). Plaintiffs further argue that Defendant’s misrepresentations are particularly harmful because of Uber’s specific comparisons to taxicab transportation. (Instrument No. 107 at 7). Plaintiffs allege that Uber makes a number of representations, on its webpages, in communications with customers and in the media, designed to create the impression that Uber ensures its customers’ safety. (Instrument No. 107- at 7). Plaintiffs" }, { "docid": "3428338", "title": "", "text": "members where their alleged injury differed from the class members). He did not suffer an injury which gives rise to a CLRA claim. 2. Plaintiff Has Failed to Allege an Actionable Misrepresentation Under the CLRA Plaintiff next argues that in fact Apple’s advertising made numerous representations suggesting that the iMac display is designed for a long productive life. PI. Opp. at 4. Thus, Plaintiff argues that the screen defedt represents a material fact that is “contrary to” those representations, and thus sufficient to state a claim under the CLRA. Plaintiff also cites the related proposition, recognized by this Court in the context of a general fraud claim, that a plaintiff seeking to state a fraud claim on 'the basis of an omission need not prove a “duty to disclose” where the defendant “volunteered] information, in which case ‘the telling of a half-truth calculated to deceive is fraud.’ ” Barnes & Noble, Inc. v. LSI Corp., 849 F.Supp.2d 925, 936 (N.D.Cal.2012). Defendants argue, however, that all of the representations identified by the Plaintiff in his complaint constitute “mere puffery” and are therefore not actionable under the CLRA. “Puffery” statements cannot support a claim under the CLRA. See In re Sony, 758 F.Supp.2d at 1089. “A challenged claim is non-actionable ‘puf-fery’ if it is a ‘[generalized, vague, and unspecified assertionf ] ... upon which a reasonable consumer could not rely.’ ” Long v. Graco Children’s Products, No. 13-cv-01257-WHO, 2013 WL 4655763, at *4 (N.D.Cal. Aug. 26, 2013) (quoting Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133, 1139-40 (C.D.Cal.2005)). The Ninth Circuit has explained that “[t]he common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246 (9th Cir.1990). As a result, advertising which “merely states in general terms that one product is superior is not actionable. However, misdescriptions of specific or absolute characteristics of a product are actionable.” Id. (internal quotation marks omitted). Thus, a representation of fact, as opposed to" }, { "docid": "5101665", "title": "", "text": "recognized that “misdescriptions” of specific or absolute characteristics of products are actionable. Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 246 (9th Cir.1990). The court recognized that advertising which “merely states in general terms that one product is superior is not actionable,” and found that the claims at issue—“we’re the low cost commercial collection experts”—were “general assertions of superiority rather than factual misrepresentations.” Id. Advertisements that make representations about safety are actionable. See, e.g., Continental Airlines, Inc. v. McDonnell Douglas Corp., 216 Cal.App.3d 388, 424, 264 Cal.Rptr. 779 (1989) (representations in brochures “were not statements of ‘opinion’ or mere ‘puffing’ ”). Plaintiffs allege sufficient facts about the ETCS-i system to state a claim for violation of the FAL. Plaintiffs allege that Toyota “caused to be made or dissem inated through California and the United States, through advertising, marketing and other publications, statements that were untrue or misleading.” (¶ 333.) Plaintiffs allege that the misrepresentations and omissions were likely to deceive a reasonable consumer. (¶ 334.) Plaintiffs also allege Toyota made “specific misdescriptions” of its vehicles. (Pltfs.’ Opp’n Brief at 31, citing e.g., ¶ 89 (alleging that ETCS makes it possible to achieve “shorter activation times” leading reasonable consumers to “believe that their brakes would activate more quickly than usual rather than potentially not at all.”).) Such a statement stands in stark contrast to Toyota’s selective quotation and characterization of the allegations in the MCC as statements of “product superiority.” (Defs.’ Mem. at 24, citing to Fraker v. KFC Corp., No. 06-01284, 2007 WL 1296571, at *2-3 (S.D.Cal. Apr. 30, 2007). In Frnker,) the court dismissed an FAL claim because “no reasonable consumer” would rely upon claims that the KFC Corporation provides the “best food” and that “all foods can fit into a balanced eating plan” as the basis of an actionable claim. Id. at *3. Here, however, the allegations about product safety are more than “mere puffery” that Toyota’s cars were superior to others. They constitute a campaign by Toyota in which it represented itself as prioritizing (even “obsessing over”) safety. Accordingly, the Court" }, { "docid": "15920812", "title": "", "text": "would rely and is not actionable under 43(a).” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir.1997) (quoting 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.04[4][d] (3d ed.1994)); see also Cook, 911 F.2d at 246 (stating that “[pjuffing has been described by most courts as involving outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude reliance by consumers”). These definitions of puffery are consistent with the definitions provided by the leading commentaries in trademark law. A leading authority on unfair competition has defined “puffery” as an “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely,” or “a general claim of superiority over a comparative product that is so vague, it would be understood as a mere expression of opinion.” 4 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition § 27.38 (4th ed.1996). Similarly, Prosser and Keeton on Torts defines “puffing” as “a seller’s privilege to he his head off, so long as he says nothing specific, on the theory that no reasonable man would believe him, or that no reasonable man would be influenced by such talk.” W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 109, at 757 (5th ed.1984). Drawing guidance from the writings of our sister circuits and the leading commentators, we think that non-actionable “puffery” comes in at least two possible forms: (1) an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion. (2) (a) With respect to materiality, when the statements of fact at issue are shown to be literally false, the plaintiff need not introduce evidence on the issue of the impact the statements had on consumers. See Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62 (2d Cir.1992); Avila v. Rubin, 84 F.3d 222, 227 (7th Cir.1996). In such a circumstance, the court will assume that" }, { "docid": "22224140", "title": "", "text": "literally false as a matter of law because the advertisement “clearly states in large white print against a dark background that the advertisement compares four-month-old pots of grass.” However, as with the bar-chart advertisement, the district court failed to read the two-pot advertisement as a whole. Although the advertisement does contain the disclaimer identified by the district court, a reasonable jury could conclude that the two-pot test supports the unqualified product superiority claims made. Dr. Engelke’s testimony raises a triable issue' of fact concerning the falsity of the two-pot advertisement. b. Consumer deception For the same reasons discussed with respect to the bar-chart advertisement, a triable issue of fact exists as to whether consumers were materially deceived by the two-pot advertisement. 3. “Less is More” and “50% Less Mowing” Advertisement Claims Plaintiffs contend that Defendants’ “Less is More” and “50% Less Mowing” advertisement claims, when read in context, are literally false. The district court granted summary judgment for Defendants, holding that the “Less is More” claim is nonactionable puffery because it “constitutes a general assertion of superiority rather than factual misrepresentation” and the “50% Less Mowing” claim is puffery because it “does not compare Bonsai to any specific competitor by name nor does it explain any basis for the claim.” “‘Puffing’ is exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable under § 43(a).” 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.04[4][d] at 27-52 (3d ed.1994). While product superiority claims that are vague or highly subjective often amount to nonactionable puffery, Cook, Perkiss and Liehe, 911 F.2d at 246, “misde-scriptions of specific or absolute characteristics of a product are actionable.” Id. (citation omitted). A specific and measurable advertisement claim of product superiority based on product testing is not puffery. See Castrol, 987 F.2d at 946; see also W.L. Gore & Assocs., Inc. v. Totes Inc., 788 F.Supp. 800, 809 (D.Del.1992) (numerical comparison that product is seven times more breathable “gives the impression that the claim is based upon independent testing” and “is not a claim of general superiority or" }, { "docid": "11660680", "title": "", "text": "the phrase SIMPLY SAFER may be perceived a general claim of superiority regarding the safety of petitioner’s syringes and thus amounts to puffery.” Board op. at 29-30. The Board appeared to believe that this puffery removes the mark from the realm of descriptiveness. For that proposition, the Board cited a treatise section addressing “puffing” under the unfair competition provisions of Section 43(a) of the Lanham Act. Id. at 30 n. 4 (citing 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:38 (4th ed. 2009)). This case, however, concerns descriptiveness for purposes of trademark registerability, not unfair competition. The same treatise on which the Board relied and our precedent clearly indicate that puffing, if anything, is more likely to render a mark merely descriptive, not less so. “Marks that are merely laudatory and descriptive of the alleged merit of a product are ... regarded as being descriptive.... Self-laudatory or puffing marks are regarded as a condensed form of describing the character or quality of the goods.” In re Boston Beer Co., 198 F.3d 1370, 1373 (Fed.Cir.1999) (citing 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:17 (4th ed. 1996)); see also Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 1360 (Fed.Cir.2001) (citing Boston Beer and McCarthy for the same proposition). Here, adding SIMPLY SAFER to SNAP does nothing more than laud the safety of Inviro’s products, which, as discussed above, is a merely descriptive use. IV Substantial evidence fails to support the Board’s conclusion that DuoProSS failed to prove that the SNAP! design mark and SNAP SIMPLY SAFER mark are merely descriptive. Accordingly, we reverse the Board’s decision and remand with instructions to enter judgment in favor of DuoProSS and to order cancellation of U.S. Registration Nos. 2,944,686 and 3,073,371. REVERSED AND REMANDED . Inviro has not appealed these determinations." }, { "docid": "8834594", "title": "", "text": "“involving outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude rebanee by consumers.” Cook, 911 F.2d at 246 (citing Metro Mobile CTS, Inc. v. Newvector Communications, Inc., 643 F.Supp. 1289 (D.Ariz.1986), rev’d without opinion, 803 F.2d 724 (9th Cir.1986)). In the FTC context, the Ninth Circuit has also defined “puffery” as “claims [which] are either vague or highly subjective.” Cook, 911 F.2d at 246 (quoting Sterling Drug, Inc. v. Federal Trade Commission, 741 F.2d 1146, 1150 (9th Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 143 (1985)); see also 3 McCarthy, § 27.04[4][d] (“ ‘Puffing may also consist of a general claim of superiority over a comparative product that is so vague, it wib be understood as a mere expression of opinion.’”). Thus, “advertising which merely states in general terms that one product is superior is not actionable.” Cook, 911 F.2d at 246 (quoting Smith-Victor Corp. v. Sylvania Electric Products, Inc., 242 F.Supp. 302, 308-09 (N.D.Ill.1965)); see also Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir.1995) (“Subjective claims about products, which cannot be proven either true or false, are not actionable under the Lanham Act”). However, “misde-scriptions of specific or absolute characteristics of a product are actionable.” Cook, 911 F.2d at 246 (quoting Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1115 (D.N.J.1987)). Furthermore, the Ninth Circuit has expressly authorized the use of the 12(b)(6) motion to dismiss to determine whether or not a statement is non-actionable puffery. Cook, 911 F.2d at 245. The Court agrees that Hi-Line’s statement that the used Excimer lasers are “perfectly rebable” is mere puffery, not actionable under the Lanham Act. In stating that the used machines are “perfectly rehable,” Hi-Line clearly does not bteraby mean that the machines are “100% rebable,” which would mean they never break down. Indeed, in bght of the mere existence of Summit technicians, Plaintiff admits that even the new machines are not “100% rebable.” Even the new machines require some service. In the context of the Hi-Line advertisement, “perfectly rebable” is more reasonably a claim that the used" }, { "docid": "5101664", "title": "", "text": "Glen Holly Entm’t, Inc. v. Tektronix, Inc., 343 F.3d 1000, 1015 (9th Cir.2003) (statements describing “high priority” that company placed on product development and marketing efforts were “mere puffery” upon which reasonable consumer could not rely); Stearns v. Select Comfort Retail Corp., No. 8-2746, 2009 WL 1635931, at *16-17 (N.D.Cal. June 5, 2009) (statement promising “perfect night’s sleep” was non-actionable “generalized and vague statement of product superiority”)).) This is not an accurate statement of the law. Neither of these cases stands for the proposition that Defendants who make safety representations cannot be liable for FAL claims. Instead, these cases present instances when representations about product development and product superiority were not actionable. That is not the case here. Toyota argues that representations it allegedly made in press releases, annual reports, brochures and the like are “generalized statements concerning the quality and safety of Toyota vehicles.” (Defs.’ Mem. at 23.) Toyota argues that these statements are not actionable because they are not likely to deceive a reasonable consumer. Toyota is not correct. The Ninth Circuit has recognized that “misdescriptions” of specific or absolute characteristics of products are actionable. Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 246 (9th Cir.1990). The court recognized that advertising which “merely states in general terms that one product is superior is not actionable,” and found that the claims at issue—“we’re the low cost commercial collection experts”—were “general assertions of superiority rather than factual misrepresentations.” Id. Advertisements that make representations about safety are actionable. See, e.g., Continental Airlines, Inc. v. McDonnell Douglas Corp., 216 Cal.App.3d 388, 424, 264 Cal.Rptr. 779 (1989) (representations in brochures “were not statements of ‘opinion’ or mere ‘puffing’ ”). Plaintiffs allege sufficient facts about the ETCS-i system to state a claim for violation of the FAL. Plaintiffs allege that Toyota “caused to be made or dissem inated through California and the United States, through advertising, marketing and other publications, statements that were untrue or misleading.” (¶ 333.) Plaintiffs allege that the misrepresentations and omissions were likely to deceive a reasonable consumer. (¶ 334.) Plaintiffs also allege Toyota" }, { "docid": "20332500", "title": "", "text": "\"amateur brochures.” (McCarey Dep. 482, Oct. 14, 2010; Defs.’ Ex. 171.) These statements, and others which McCarey claims are disparaging and factually incorrect, are nothing more than AASP's opinions and puffery, intended to promote AASP’s show, and do not demonstrate that AASP used \"wrongful means” to disrupt REI’s business relationships. See., e.g., Catskill Development, 547 F.3d at 134 (discussing \"the general principle that statements of opinion generally cannot constitute fraud”); Verizon Directories Corp. v. Yellow Book USA, Inc., 309 F.Supp.2d 401, 405 (E.D.N.Y.2004) (explaining un-actionable puffery as \"an exaggeration or overstatement expressed in broad, vague, and commendatory language,” or \"a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion” (internal quotation marks and citations omitted)). Furthermore, to the extent that these press releases and articles contain factual statements, none of the alleged \"misrepresentations” to which McCarey points are either material, likely to deceive consumers, or likely to injure REI, and are thus un-actionable and cannot form the basis of any claim for misrepresentation. See, e.g., Bel Canto Design, Ltd. v. MSS HiFi, Inc., No. 11-CV-6353, 2012 WL 2376466, at *16 (S.D.N.Y. June 20, 2012) (noting that to state a claim for false advertising under the Lanham Act, a plaintiff must allege that the defendant \"made a misrepresentation in commerce that: (1) actually deceived or tended to deceive its consumers; (2) was material ...; and (3) injured or was likely to injure [plaintiff]”); see also S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir.2001) (“The Lanham Act does not prohibit false statements generally. It prohibits only false or misleading ... representations of fact made about one’s own or another’s goods or services.” (internal quotation marks omitted)). . REI has voluntarily dismissed its tortious interference with contract claim against the remaining Defendants. (PL’s Opp'n 28 n. 8.) . Although Rule 15(b) refers to amendments of the complaint during or after trial, some courts have applied Rule 15(b) to conform pleadings to the proof offered at summary judgment. See, e.g., Clomon v." }, { "docid": "11660679", "title": "", "text": "sort of snapped her fingers like that.” Sharp test, at 20. He did not, however, assert that the idea of using SIMPLY SAFER arose from the same conversation or was otherwise shaped by his desire to convey the products’ ease of use. Id. In any event, even if Dr. Sharp’s decision to use the words SIMPLY and SAFER were motivated by a desire to convey the products’ ease of use, the Board found no evidence during its double entendre analysis that consumers would recognize such a meaning. The Board, in sum, failed to cite any evidence, and the record contains none, supporting its view that the alliteration in SNAP SIMPLY SAFER creates a commercial impression that is more than merely descriptive. B The Board, moreover, erred as matter of law when it concluded that, because SIMPLY SAFER is a laudatory phrase or puffery, the phrase renders the mark more than descriptive. We review that legal conclusion de novo. Pacer Tech., 338 F.3d at 1349. The Board observed that “the term ‘Simply’ modifies ‘Safer’ such that the phrase SIMPLY SAFER may be perceived a general claim of superiority regarding the safety of petitioner’s syringes and thus amounts to puffery.” Board op. at 29-30. The Board appeared to believe that this puffery removes the mark from the realm of descriptiveness. For that proposition, the Board cited a treatise section addressing “puffing” under the unfair competition provisions of Section 43(a) of the Lanham Act. Id. at 30 n. 4 (citing 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:38 (4th ed. 2009)). This case, however, concerns descriptiveness for purposes of trademark registerability, not unfair competition. The same treatise on which the Board relied and our precedent clearly indicate that puffing, if anything, is more likely to render a mark merely descriptive, not less so. “Marks that are merely laudatory and descriptive of the alleged merit of a product are ... regarded as being descriptive.... Self-laudatory or puffing marks are regarded as a condensed form of describing the character or quality of the goods.” In re Boston Beer Co., 198 F.3d" }, { "docid": "6255262", "title": "", "text": "HP’s limited one-year warranty”). This court agrees for the same reasons as those given above. Thus, defendant’s motion to strike plaintiffs UCL claim based on the CLRA is GRANTED with prejudice. III. Standalone UCL/FAL Claim Plaintiff claims to have pled partial representations likely to mislead the public.- “Generalized, vague, and unspecified assertions constitute ‘mere puf-fery’ upon which a reasonable consumer could not rely, and hence are not actionable.” Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133, 1139 (C.D.Cal.2005) (quoting Glen Holly Entertainment, Inc. v. Tektronix Inc., 343 F.3d 1000, 1005 (9th Cir. 2003)). “While product superiority claims that are vague or highly subjective often amount to non[-]actionable puffery, ... misdescriptions of specific or absolute characteristics of a product are actionable.” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997). Plaintiff has provided no specific statement or absolute characteristic regarding Alienware laptops. Thus, the generalized and vague statements of product superiority such as “superb, uncompromising quality” and “faster, more powerful, and more innovative than competing machines” are non-actionable puffery. See Brothers, 2006 WL 3093685, at *4-*5 (rejecting “high-performance” and “top of the line” as mere puffery); Long, 2007 WL 2994812, at *1 (Ware, J.) (rejecting “reliable mobile computing solution” and “do more on the move” as puffery). The court has not been able to glean any false statements of fact from plaintiffs complaint. See SAC, ¶ 64. Indeed, “higher performance,” “longer battery life,” “richer multimedia experience,” “faster access to data” are all non-actionable puffery. The same goes for the following statement: The Area-51m is a powerful machine which requires powerful cooling. All Area-51m systems come with a custom made heat sink specifically designed for high speed processors. Sticking with Alienware® tradition, each unit is packed full of fans and exhaust units to ensure optimum performance. See id. Even if the foregoing statement was not puffery, there is no misstatement of fact. The court need not deal individually with each alleged misrepresentation made in the complaint since they are all non-actionable puffery. In sum, defendant’s motion to dismiss this cause of action is GRANTED. IV. Fraudulent Concealment Under" }, { "docid": "15920811", "title": "", "text": "614(stating that “a Lanham Act claim must be based upon a statement of fact, not of opinion”). As noted by our court in Presidio: “[A] statement of fact is one that (1) admits of being adjudged true or false in a way that (2) admits of empirical verification.” Presidio, 784 F.2d at 679; see also Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir.1997)(stating that in order to constitute a statement of fact, a statement must make “a specific and measurable advertisement claim of product superiority”). (b) One form of non-actionable statements of general opinion under section 43(a) of the Lanham Act has been referred to as “puffery.” Puffery has been discussed at some length by other circuits. The Third Circuit has described “puffing” as “advertising that is not deceptive for no one would rely on its exaggerated claims.” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914 (3d Cir.1990). Similarly, the Ninth Circuit has defined “puffing” as “exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely and is not actionable under 43(a).” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir.1997) (quoting 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.04[4][d] (3d ed.1994)); see also Cook, 911 F.2d at 246 (stating that “[pjuffing has been described by most courts as involving outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude reliance by consumers”). These definitions of puffery are consistent with the definitions provided by the leading commentaries in trademark law. A leading authority on unfair competition has defined “puffery” as an “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely,” or “a general claim of superiority over a comparative product that is so vague, it would be understood as a mere expression of opinion.” 4 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition § 27.38 (4th ed.1996). Similarly, Prosser and Keeton on Torts defines “puffing” as “a seller’s privilege to he his head off, so long as he says nothing specific, on the" }, { "docid": "1219965", "title": "", "text": "generally constitutes puffery. See id. at 1140 (collecting cases); see also Summit Tech., Inc. v. High-Line Med. Instruments, Co., 933 F.Supp. 918, 931 (C.D. Cal. 1996) (“The word ‘reliable’ is inherently vague and general—in common parlance akin to a statement that the machine is ‘fine.’ ”). In contrast, “misdescriptions of specific or absolute characteristics of a product are actionable.” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997) (citations and internal quotation marks omitted) (finding a claim that “Less is More” to be nonactionable puffery, but a “50% Less Mowing” claim actionable as “a specific and measurable advertisement claim of product superiority based on product testing”). Seagate’s statements listed above do not involve specific or measurable facts about the drives’ characteristics on which a reasonable consumer could rely. They consist instead of vague and subjective assertions, amounting to mere puffery. Plaintiffs argue that a state trial court considering similar claims against Seagate recently found the same statements to be actionable. See Pozar v. Seagate Tech. LLC, No. CGC-15-547787, 2016 WL 4562694, 2016 Cal. Super. LEXIS 5083 (Cal. Super. Ct. Feb. 10, 2016). The Pozar court found Seagate’s statements specific enough to state a CLRA claim: “To be sure there are cases that do find puffery, but here Seagate made fairly specific statements about the reliability of its hard drives—e.g., even when ‘life happens’ to your computer, your memories are always protected.’ A reasonable person might rely on that statement when choosing one hard drive over another.” Id., 2016 WL 4562694 at *4, 2016 Cal. Super. LEXIS 5083 at *9. The Pozar court cited Lima v. Gateway, Inc., 710 F.Supp.2d 1000 (C.D. Cal. 2010), in which the district court found that although statements that a monitor “offered a ‘visually intense’ gaming experience or ‘über-universal functionality”’ were not “quantifiable and, as such, entirely subjective,” considered in context, the statements were relevant to the plaintiffs claim that the defendant “misled him into believing that the monitor could attain a resolution of 2,560 x 1,600 pixels without additional purchase” and “that the monitor would connect to almost any device,”" }, { "docid": "22224141", "title": "", "text": "of superiority rather than factual misrepresentation” and the “50% Less Mowing” claim is puffery because it “does not compare Bonsai to any specific competitor by name nor does it explain any basis for the claim.” “‘Puffing’ is exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable under § 43(a).” 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.04[4][d] at 27-52 (3d ed.1994). While product superiority claims that are vague or highly subjective often amount to nonactionable puffery, Cook, Perkiss and Liehe, 911 F.2d at 246, “misde-scriptions of specific or absolute characteristics of a product are actionable.” Id. (citation omitted). A specific and measurable advertisement claim of product superiority based on product testing is not puffery. See Castrol, 987 F.2d at 946; see also W.L. Gore & Assocs., Inc. v. Totes Inc., 788 F.Supp. 800, 809 (D.Del.1992) (numerical comparison that product is seven times more breathable “gives the impression that the claim is based upon independent testing” and “is not a claim of general superiority or mere puffing”). The district court was correct in concluding that Defendants’ “Less is More” claim is nonactionable puffery. It is precisely the type of generalized boasting upon which no reasonable buyer would rely. The “50% Less Mowing Claim,” on the other hand, is a specific and measurable advertisement claim of product superiority based on product testing and, as such, is not puffery. Castrol, 987 F.2d at 946. While the district court found it to be puffery because it does not compare Bonsai to any specific competitor by name, “there need not be a direct comparison to a competitor for a statement to be actionable under the Lanham Act.” Id. Moreover, while the district court found that the claim was puffery because the advertisement “does not explain any basis for the claim,” the advertisement actually makes the claim based on “[t]ests conducted by our research farm.” Summary judgment was erroneously granted on the “50% Less Mowing” claim. B. Were Plaintiffs Injured? A plaintiff who successfully establishes a violation of § 43(a) is entitled to recover, “subject" }, { "docid": "20285472", "title": "", "text": "Best in the world. Statements 1-4 of which the Defendants complain can all be grouped into a single category, which the Court will call the Best category. Each claims that one of Guidance’s products is the “best in the world.” Response Exhibit G & Attachments 1-3. That is the quintessence of puffery. Whether one thing or another is the “best” is a normative assessment that involves weighing potentially infinite and sometimes immeasurable factors. One may say that a particular pen is “the best” because it costs two dollars, weighs an ounce, makes a very fine line and “feels right” in the user’s hand. Another user might not place so much emphasis on price, prefer a thicker line, and simply disagree with whether the writing utensil “feels right.” This distinction does not necessarily make the first user’s assessment wrong. The same could be true of an endodontic file. As some courts have recognized, statements that a product is the “World’s Best” are too general to be considered factual and constitute “puffing.” In re Sterling Drug, Inc., 102 F.T.C. 395, § II.A.1 (1983)(“We agree [that] the phrases, ‘Bayer is 100% aspirin — the world’s best aspirin,’ and ‘Bayer works wonders,’ are merely puffing because the ad does not discuss any comparison of Bayer’s ‘quality’ with other brands of aspirin.”); Atari Corp v. 3DO Co., No. C 94-20298 RMW (EAI), 1994 WL 723601, at *1 (N.D.Cal. May 16, 1994)(finding that declaring something to be the “Most Advanced ... in the Universe” is puffing). As Professor J. Thomas McCarthy has expressed: Puffing may [ ] consist of a general claim of superiority over a comparative product that is so vague and indeterminate that it will be understood as a mere expression of opinion. Expressions of opinion cannot be actionable under § 43(a). Advertising claims that a product or service is “better” and “superior” fall into this category. 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:38 (4th ed. 1997). Under these standards, statements 1-4 are clearly puffery and not actionable under the Lanham Act Section 43(a). Furthermore, the other factors that" }, { "docid": "14463073", "title": "", "text": "claim with sufficient particularity to satisfy both the general pleading requirements of Rule 8 and the particularity requirement of Rule 9(b). Notwithstanding the Court’s decision as noted above, Plaintiff presents, in the alternative, a second argument for the dismissal of Defendant’s false advertising claim. Plaintiff further argues that Defendant’s allegations, even if they do provide sufficient detail, cannot state a violation of 15 U.S.C. § 1125. Specifically, Plaintiff maintains that the statement “Compare to Body Solutions” on NFI Solutions products does not qualify as the type of false or misleading description or representation of fact required for a false advertising cause of action pursuant to 15 U.S.C. § 1125. In order to form the base of a false advertising claim, the offending statement must be “either false on its face or, although literally true, likely to mislead and to confuse consumers given the merchandising context.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1138 (4th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994); see also Coastal Abstract Servs., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir.1999). Accordingly, “bald assertions of superiority or general statements of opinion” do not result in a violation of 15 U.S.C. § 1125(a). Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 496 (5th Cir.2000), cert. denied, 532 U.S. 920, 121 S.Ct. 1355, 149 L.Ed.2d 285 (2001). Similarly, statements that are “exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely” are more properly considered “puffery” and are not actionable under the Lanham Act’s false advertising provision. Southland Sod Farms, 108 F.3d at 1145. Other sources have described puffery as “a general claim of superiority over a comparative product that is so vague, it would be understood as a mere expression of opinion.” 4 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition § 27.38 (4th ed.1996). Plaintiff maintains that the “Compare to Body Solutions” statement on its own products does not make a detailed or specified assertion of measurable fact. As such, Plaintiff contends that the statement Defendants complain of is" }, { "docid": "20285473", "title": "", "text": "102 F.T.C. 395, § II.A.1 (1983)(“We agree [that] the phrases, ‘Bayer is 100% aspirin — the world’s best aspirin,’ and ‘Bayer works wonders,’ are merely puffing because the ad does not discuss any comparison of Bayer’s ‘quality’ with other brands of aspirin.”); Atari Corp v. 3DO Co., No. C 94-20298 RMW (EAI), 1994 WL 723601, at *1 (N.D.Cal. May 16, 1994)(finding that declaring something to be the “Most Advanced ... in the Universe” is puffing). As Professor J. Thomas McCarthy has expressed: Puffing may [ ] consist of a general claim of superiority over a comparative product that is so vague and indeterminate that it will be understood as a mere expression of opinion. Expressions of opinion cannot be actionable under § 43(a). Advertising claims that a product or service is “better” and “superior” fall into this category. 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:38 (4th ed. 1997). Under these standards, statements 1-4 are clearly puffery and not actionable under the Lanham Act Section 43(a). Furthermore, the other factors that the Tenth Circuit considers in analyzing whether a statement is puffing — context, relative expertise of seller and consumer, and size of the audience' — all weigh in favor of finding these statements to be puffing. See Alpine Bank v. Hubbell, 555 F.3d at 1106-07. The statement were made in marketing materials, wherein a seller is expected to cast his wares in the best possible light to tempt consumers to buy his product rather than any other. The consumers of Guidance’s products are relatively sophisticated. Endodontic products are rarely bought by anyone other than dentists or, more often, endodontists, both of whom should have substantial experience using these products and must have a thorough understanding of their characteristics, given the precision work — in the soft tissue of another human’s mouth, no less— for which the devices are used. Finally, because these statements were made in advertising, the audience is about as large as it can be under the circumstances. Combined with the distinctly subjective nature of describing something as “the best,” these factors further" } ]

[ { "docid": "3314726", "title": "", "text": "provided an answer. In McGee v. Weinberger, 518 F.2d 380 (5th Cir. 1975), the case relied on by the majority, there was objective medical evidence of psychiatric impairment, and the claimant requested a consultive psychiatric examination at government expense because she was financially unable to obtain such an examination. By contrast, in Mrs. Davis’ ease, no objective medical evidence pointed to any mental or emotional disorder, no psychiatric examination was ever suggested by Dr. Haller, Mrs. Davis never sought a psychiatric examination before or during her hearing, and nothing in her testimony before the administrative law judge indicated any need for such an examination. We have previously explained that McGee “does not require a consultive examination at government expense unless the record establishes that such an examination in necessary to enable the administrative law judge to make the disability decision.” Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977) (emphasis in original.) A psychiatrist might have helped alleviate Mrs. Davis’ pain, or determined a nonphysical cause for it, but he could not have added anything to the claim that the pain in fact existed, since its existence was conceded by the administrative law judge. The issue was whether pain so impaired her that she could perform no substantial gainful work. Her testimony as to her daily routine chores which included partial care of her young child formed more than adequate support for the trier of fact, the administrative law judge, to conclude that, while she could not perform her former job, she could perform jobs calling for light or sedentary work. When he gave this determination to the vocational expert and received that expert’s unrefuted opinion that there were jobs available to persons with that limitation, the proof would support no other conclusion than denial of benefits. We said'in Gaultney: There may be, as Gaultney argues, a gap in the evidence as to the possible emotional source of his pain. If there is such a gap, however, it is to be laid at the door of him who bore the burden of proof, Gaultney himself. There was no duty" } ]

[ { "docid": "17242597", "title": "", "text": "Western v. Harris, 633 F.2d 1204 (5th Cir. 1981); Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974). Pain not so severe as of itself to render a person unable to engage in any substantial gainful activity should be considered with other results of a “medically determinable impairment” to determine whether a claimant is disabled. The AU is required to consider these symptoms of the claimant, as well as other objective evidence such as medical opinions and the like. DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). The subjective feelings of pain may be introduced either through testimony by the claimant or friends, family, and co-workers. Such testimony cannot merely be disregarded. Thorne v. Weinberger, 530 F.2d 580, 583 (4th Cir. 1976); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). See Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Laffoon v. Califano, 558 F.2d 253 (5th Cir. 1977). An ALJ need not, however, believe a claimant’s testimony regarding pain or other symptoms. Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); Gaultney v. Weinberger, 505 F.2d 943, 945 (5th Cir. 1974); See also Reyes Robles v. Finch, 409 F.2d 84, 87 (1st Cir. 1969). Nowhere in his decision does the ALJ mention the principle that subjective complaints of pain can be a disabling condition. Nor does the ALJ mention Mrs. Ware’s subjective complaints. He should have done so. Nevertheless, having read the transcript of her testimony, the medical evidence considered, and the proffer later made by counsel, we believe that a remand for express findings would be a wasteful corrective exercise. At the time of the hearing, Mrs. Ware was suffering from the results of her operation nine days before. Save her own testimony that she had some pain before the operation and that it had worsened, she offered no medical evidence that the pain resulted from a medically determinable impairment that existed on March 31, 1977. Further, no objective medical evidence was presented that indicated Mrs. Ware could not perform the duties of a nurse’s aide. On the record as a whole, we are satisfied that" }, { "docid": "23273624", "title": "", "text": "was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, there is substantial evidence to support the Secretary’s decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild “personality disorder.” The ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer. The only contrary evidence offered was testimony by Allen himself and by his former wife as to his “blackouts” and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a “difficult” witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen’s testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for" }, { "docid": "23273623", "title": "", "text": "PER CURIAM: Joey Allen appeals from the denial by the Secretary of Health and Human Resources of his application for disability benefits and supplemental security income under the Social Security Act, 42 U.S.C.A. §§ 423(a); 1381a. The district court affirmed the denial. Allen challenges the legal standard followed and findings of fact made by the administrative law judge, as well as the district court’s denial of his motion to remand in light of new evidence. Finding no reversible error and the Secretary’s decision to be supported by substantial evidence, we affirm. Allen is a middle-aged male with a ninth grade education. He has been employed variously as a horse trainer, railroad freight conductor, carpenter, carpenter’s helper, and laborer. He was last employed in 1976 as a construction laborer. On November 18, 1976, Allen applied for disability benefits and supplemental security income, alleging a disability based on pain in and behind his eyes causing him to go unconscious several times a day. After a hearing, an administrative law judge denied the application on the ground Allen was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, there is substantial evidence to support the Secretary’s decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild “personality disorder.” The" }, { "docid": "17237453", "title": "", "text": "of pain. Gaultney v. Weinberger, 505 F.2d 943, 945-46 (5th Cir.1974). If substantial evidence supports the determination, this court will affirm. Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.1980). In making such a determination, the ALJ must recognize that pain alone can be disabling even if there is no objective medical evidence to support the claimant’s testimony about pain. See Gaultney, 505 F.2d at 945. At the same time, credibility determinations are for the ALJ. Bloodsworth v. Heckler, 703 F.2d 1233, 1242 (11th Cir.1983). Even so, this court has condemned “sit and squirm” jurisprudence. [T]he ALJ engaged in what had been condemned as “sit and squirm” jurisprudence. In this approach, an ALJ who is not a medical expert will subjectively arrive at an index of traits which he expects the claimant to manifest at the hearing. If the claimant falls short of the index, the claim is denied. As the court observed in Tyler [v. Weinberger, 409 F.Supp. 776 (E.D.Va.1976)], this approach will not only result in unreliable conclusions when observing claimants with honest intentions, but may encourage claimants to manufacture convincing observable manifestations of pain, or, worse yet, discourage them from exercising the right to appear before an Administrative Law Judge for fear that they may not appear to the unexpert eye to be as bad as they feel. 409 F.Supp. at 789. Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.1982). The ALJ determined that claimant was not suffering pain of a disabling nature because Wilson did not appear to be in great pain at the hearing and no clinical findings supported Wilson’s testimony. 2 Rec. at 22. The ALJ even concluded that Wilson did not need all the medication that had been prescribed to him. Id. The ALJ thus improperly engaged in “sit and squirm” jurisprudence and erroneously required objective medical evidence to support Wilson’s testimony about pain. Because of these errors, the case must be remanded to the Secretary for further consideration under proper standards. The record indicates that six out of eight doctors thought Wilson was suffering from some problem (Soshea, Espinoza, Hobby, Bridgeford," }, { "docid": "22299047", "title": "", "text": "F.2d at 998. “Good cause shown” has been defined by this court to include a finding that the Secretary’s decision is unsupported by substantial evidence, combined with an inability to make a definitive ruling concerning a claimant’s disability based on the record before the court. See id.; Fruge, supra, 631 F.2d at 1247. In the case at bar we have found that the Secretary’s findings are not supported by substantial evidence, but that the record does not support a dispositive ruling for appellant. Because “[t]he present state of the record .. . makes it impossible for us to rule definitively one way or the other,” id., we remand for further proceedings. . It is clear that the Secretary must consider the combined effect of a claimant’s impairments in making a determination of disability. See Brenem, supra, 621 F.2d at 690; Strickland, supra, 615 F.2d at 1110; Knox v. Finch, 427 F.2d 919 (5th Cir. 1970). In the case at bar, this includes consideration of any impairments resulting from burns suffered by appellant after the original ALJ decision was rendered. We offer no opinion as to whether this would in itself constitute new evidence requiring a remand to the Secretary. We simply find that considerations of fairness and efficiency, together with the rule that impairments must be considered in toto, require the Secretary to consider all the evidence — including evidence of events occurring after the initial administrative hearing — in deciding the case on remand. . Appellant claims that the ALJ did not adequately consider subjective evidence of pain in making his decision. Since we remand based on the alcoholism and vocational expert issues, supra, we need not reach this issue. However, we take this opportunity to note that while pain can be the basis of disability even without objective medical evidence supporting its existence, see Western, supra, 633 F.2d at 1206 n.4; Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974), and while the Secretary must consider a claimant’s subjective pain and discomfort in determining the existence of a disability, see Rhynes v. Califano, 586 F.2d 388 (5th Cir." }, { "docid": "8440713", "title": "", "text": "shown good cause for his failure to provide these psychiatric evaluations earlier in the proceedings. Although the reports offered were not made until 1982, Allen was aware of his mental problems at the time of the hearing. The only explanation Allen has offered for his failure to obtain the evidence earlier is that he was not represented by an attorney at the administrative hearing. Even if we accept this argument, it would not excuse Allen’s failure to introduce the evidence in the district court. The obvious explanation is that when Allen was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The “good cause” requirement would be meaningless if such circumstances were sufficient to allow introduction of new evidence. Our decision in Ward v. Schweiker, 686 F.2d 762 (9th Cir.1982), does not hold otherwise. In that case, doctors had failed to discover that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the Secretary’s decision. Thus, the claimant could not have obtained the evidence at the time of her hearing. In our case, Allen knew of his mental problems and had had several prior psychiatric evaluations. The reports merely contain new interpretations of the same mental problems discussed in the earlier evaluations. He has not alleged that he could not have had these tests and evaluations made earlier. We reverse and remand to the district court with instructions to remand to the Secretary to take evidence as to whether jobs are available in the economy for a person with Allen’s limitations. . Our decision in Odle v. Heckler, 707 F.2d 439, 449 (9th Cir.1983) is inapplicable here. In Odie, we held the guidelines were applicable despite the claimant’s deafness, dizziness, and drug dependence. However, the deafness was essentially cured by a hearing aid and drug dependence was controlled by a treatment program. The dizziness was a recurring problem but was found not to limit the claimant’s ability to do light work. Unlike the environmental restriction involved in Allen’s case, dizziness would" }, { "docid": "23151556", "title": "", "text": "of whether a remand to the Secretary is appropriate. At such a determination, the appellant has the burden of showing that he had good cause for his failure to submit the evidence in a prior proceeding. See Allen v. Schweiker, 642 F.2d 799 (5th Cir. 1981); Watts v. Harris, supra (good cause not shown if appellant fails to explain why medical report was not obtained prior to administrative hearing). He must also show that the evidence is new and material. The requirement of materiality is an important one. The concept “material” suggests that the new evidence must be relevant and probative. However, not every discovery of new evidence, even if relevant and probative, will justify a remand to the Secretary, for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing. Thus we hold that a remand to the Secretary is not justified if there is no reasonable possibility that it would have changed the outcome of the Secretary’s determination. We vacate the judgment of the district court and remand for a determination of whether appellant’s new evidence meets the requirements of § 405(g). If the district court finds that the evidence does meet the requirements, the case should be remanded to the Secretary for further proceedings. If the court finds that the requirements are not met, remand should be denied and the district court should reinstate its original judgment. VACATED and REMANDED. . At the August 3 hearing, appellant testified that since February, 1978, he had been receiving outpatient treatment two to three times a week at Parkland for his disabled left side. He also stated that he had been given medication to ease the pain in his shoulder. . The house conference report on Section 307 of the 1980 amendments (the new version of § 405(g)) states that: “ ‘The conference agreement includes this provision [modification of the old ‘good cause’ requirement] of the House and Senate bills effective upon enactment.’ ” House Conference Report No. 944, 96th Cong., 2d Sess. 59, reprinted in [1980] 3 U.S.Code Cong. &" }, { "docid": "7834782", "title": "", "text": "day with his collection of National Airlines’ memorabilia. Smallwood complains in this appeal that the Secretary failed to properly evaluate and consider testimony relating his periodic loss of consciousness without warning. The law is well settled that an administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by subjective complaints. Allen, supra, at 801; Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979); Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). Although the issue of credibility is clearly reserved to the Secretary, Smith v. Schweiker, 646 F.2d 1075, 1081 (5th Cir. 1981), it nevertheless remains our duty to determine whether substantial evidence supports the Secretary’s conclusion. Perez, supra, at 1001. In his decision denying relief the Administrative Law Judge specifically found that Smallwood’s “allegations of episodes of weakness, dizziness, reduced energy level and other subjective symptoms are credible to preclude heavy work but are not credible to preclude at least light work which does not require climbing, balancing, and working with or around hazardous machinery.” Then, based upon the applicable regulations and the testimony of the vocational expert, the Administrative Law Judge concluded that Smallwood was capable of engaging in a wide range of skilled and semi-skilled light jobs such as travel agent, administrative assistant with a government agency, transportation company, or other industry, dispatcher, expeditor in the transportation and other industries, and general office manager. However, Smallwood’s principle complaint in support of his request for disability insurance benefits was that as a result of his condition of hypoglycemia, he periodically experienced a complete loss of consciousness, often without warning, and that such episodes were occurring with increasing frequency. Indeed, the questions asked by the Administrative Law Judge during the hearing held below reflect serious consideration of this complaint at that time. Nevertheless, there is nothing in the record before this Court reflecting a determination by the Administrative Law Judge on the credibility of Smallwood’s complaint of periodic blackouts. We find that such a determination is critical to the present appeal. The report of a treating physician, Dr. Charles. H." }, { "docid": "8440712", "title": "", "text": "one rational interpretation of the evidence, the ALJ’s conclusion must be upheld. Richardson v. Perales, 402 U.S. 389,399, 91 S.Ct. 1420,1426,28 L.Ed.2d 842 (1971); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Based on the reports of Drs. Patterson and Lunianski, and to a lesser extent, Dr. Heiman, the ALJ could rationally conclude that Allen’s emotional disorder was not disabling. Moreover, there was some evidence that his disorder was amenable to control. The psychiatric evidence Allen cites in support of his argument is selective and shows primarily that a disorder exists. It does not show that it was of disabling severity. The ALJ’s conclusion is supported by substantial evidence. NEW EVIDENCE Allen asks this court to remand for consideration of new evidence consisting of the results of objective psychological tests and psychiatric evaluations. A claimant seeking remand must show “thát there is' new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Allen has not shown good cause for his failure to provide these psychiatric evaluations earlier in the proceedings. Although the reports offered were not made until 1982, Allen was aware of his mental problems at the time of the hearing. The only explanation Allen has offered for his failure to obtain the evidence earlier is that he was not represented by an attorney at the administrative hearing. Even if we accept this argument, it would not excuse Allen’s failure to introduce the evidence in the district court. The obvious explanation is that when Allen was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The “good cause” requirement would be meaningless if such circumstances were sufficient to allow introduction of new evidence. Our decision in Ward v. Schweiker, 686 F.2d 762 (9th Cir.1982), does not hold otherwise. In that case, doctors had failed to discover that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the Secretary’s decision. Thus," }, { "docid": "23151555", "title": "", "text": "evidence in the legislature history that the new provisions of § 405(g) should not apply to cases pending in the courts on June 9, 1980. We think as well that no manifest injustice results from the application of the new provision. It was already the law of this circuit that new evidence could not be good cause for a remand to the Secretary under § 405(g) unless an explanation was given as to why it was not submitted previously, Watts v. Harris, 604 F.2d 515 (5th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 168, 66 L.Ed.2d 80 (1980), and unless the evidence was relevant and probative. Williams v. Califano, 590 F.2d 1332 (5th Cir. 1979). We therefore apply the new provisions of § 405(g) to this case. Appellant has not submitted his 400 pages of medical testimony for our consideration. Nor is it our job as an appellate court to examine new evidentiary materials and find issues of fact. The best solution is to remand the case to the district court for a determination of whether a remand to the Secretary is appropriate. At such a determination, the appellant has the burden of showing that he had good cause for his failure to submit the evidence in a prior proceeding. See Allen v. Schweiker, 642 F.2d 799 (5th Cir. 1981); Watts v. Harris, supra (good cause not shown if appellant fails to explain why medical report was not obtained prior to administrative hearing). He must also show that the evidence is new and material. The requirement of materiality is an important one. The concept “material” suggests that the new evidence must be relevant and probative. However, not every discovery of new evidence, even if relevant and probative, will justify a remand to the Secretary, for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing. Thus we hold that a remand to the Secretary is not justified if there is no reasonable possibility that it would have changed the outcome of the Secretary’s determination. We vacate the judgment of the" }, { "docid": "8440707", "title": "", "text": "FLETCHER, Circuit Judge: Allen appeals from an order of the district court upholding the Secretary’s finding that Allen was not disabled. We reverse. FACTS Allen is 41 years old. He has worked as a plumber for several years, and has a bachelor’s degree in fine arts. He filed applications for disability insurance benefits in 1979, alleging disability since 1971 due to arthritis, back and respiratory problems. At the hearing before the Administrative Law Judge (ALJ), Allen also presented evidence of mental problems and an ankle injury. The ALJ found that Allen was capable of doing at least sedentary work in an environment where he would not be exposed to respiratory irritants. Applying the Secretary’s medical/vocational guidelines, the ALJ concluded Allen was not disabled. The Social Security Appeals Council affirmed. On review, the district court granted summary judgment for the Secretary and denied Allen’s motion for a remand to consider new psychiatric evidence. ISSUES Allen raises three issues on appeal. Allen contends, first, that the Secretary did not meet her burden of proving there were jobs in the economy which Allen could perform; second, that the Secretary’s finding that his mental problems did not limit his capacity for sedentary work is not supported by substantial evidence; and third, that two new psychiatric reports submitted to this court require remand. AVAILABILITY OF JOBS In reviewing the denial of a disability claim, this court must affirm if the Secretary’s findings are supported by substantial evidence in the record as a whole and the Secretary applied the proper legal standards. Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir.1982); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir.1981). A claimant has the initial burden of establishing a pri-ma facie case of disability by showing that a physical or mental impairment prevents him from engaging in his previous occupations. The burden then shifts to the Secretary to show that other substantial work, for which the claimant is qualified, exists in the national economy. Bonilla v. Secretary, 671 F.2d 1245, 1246 (9th Cir.1982); Thompson, 665 F.2d at 939. Allen proved that, because of physical and respiratory" }, { "docid": "17242596", "title": "", "text": "twelve months.” 42 U.S.C. § 423(d). There are slight differences in the supplemental income benefits text, 42 U.S.C. § 1382c, but those do not, for present purposes, even hint at a different meaning. A “physical or mental impairment” is described as “an impairment which results from anatomical, physiological or psychological abnormalities which are demonstrable by acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3) and § 1382c(a)(3)(C). The statute requires the Secretary to consider pain and other subjective responses. However difficult it may be to evaluate these responses by physiological and neurological tests, however variable the intensity of individual reaction to the same stimuli, to the person who experiences discomfort, pain, anxiety, depression or other emotional reactions, the distress is real; it can and does affect that person’s capacity to work. The statute requires, however, that such subjective symptoms be linked to a “medically determinable impairment.” Thus, pain resulting from a “medically determinable impairment,” even when its existence is unsupported by objective medical evidence, may of itself be so intense as to cause disability. Western v. Harris, 633 F.2d 1204 (5th Cir. 1981); Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974). Pain not so severe as of itself to render a person unable to engage in any substantial gainful activity should be considered with other results of a “medically determinable impairment” to determine whether a claimant is disabled. The AU is required to consider these symptoms of the claimant, as well as other objective evidence such as medical opinions and the like. DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). The subjective feelings of pain may be introduced either through testimony by the claimant or friends, family, and co-workers. Such testimony cannot merely be disregarded. Thorne v. Weinberger, 530 F.2d 580, 583 (4th Cir. 1976); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). See Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Laffoon v. Califano, 558 F.2d 253 (5th Cir. 1977). An ALJ need not, however, believe a claimant’s testimony regarding pain or other symptoms. Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); Gaultney" }, { "docid": "23273629", "title": "", "text": "establish “good cause.” 42 U.S.C.A. § 405(g). See also Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980). We agree with the district court the new report does not provide good cause. The report is at best vague and inconclusive, and unlike the previous medical reports, does not appear to rest on clinical testing and observation. Moreover, Allen has failed to explain why the report was not obtained prior to the initial hearing before the administrative law judge. See Watts v. Harris, 614 F.2d 515, 516 (5th Cir. 1980). The district court acted within its discretion in denying the motion to remand. In upholding the denial of Allen’s application, we note Allen has already been examined by two psychiatrists. Neither found any signs of mental or emotional disturbance which could cause the symptoms of pain he alleges. The case is thus distinguishable from Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979), where a remand was considered necessary for psychiatric evaluation of the claimant to determine whether the cause of his pain was psychosomatic. In addition, Allen was represented by counsel at the hearing, who was in a position to gather and present evidence in support of Allen’s application, as well as to challenge the medical reports introduced and the testimony of the vocational expert. There is no indication, then, he was deprived of a full and fair hearing on his claims. Cf. Brenem v. Harris, 621 F.2d 688 (5th Cir. 1980); Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974). AFFIRMED." }, { "docid": "8759784", "title": "", "text": "Berg’s evaluation concerning the existence of cause of headaches, but the physical examinations described in the record were thorough enough to suggest that no medically determinable physical abnormality caused plaintiff’s headaches. The administrative law judge did not mention plaintiff’s headaches in his findings. Under the circumstances, a remand for a finding on the need for medical evaluation of plaintiff’s headaches is appropriate. Cf. Cooney v. Finch, 300 F.Supp. 818, 821 (W.D.Pa.1969). The Court cannot determine whether the administrative law judge should obtain psychiatric evidence concerning the headaches in the absence of a finding about the credibility of plaintiff’s claims, and the Court does not know what standards HEW uses in deciding whether to order additional medical examinations. A hearing examiner is not always required to investigate possible medical causes of alleged pain where the claimant’s allegations are unsupported by any medical evidence. See Bishop v. Weinberger, 380 F.Supp. 293, 297 (E.D.Va.1974). The Court orders a remand in this case because a remand which may involve the taking of additional psychiatric evidence is otherwise necessary, because the present record and new evidence contain medical evidence of psychological problems, albeit not directly linked with the headaches, because plaintiff allegedly visited two doctors for treatment of his headaches, and because the present record contains no evidence that plaintiff’s pain had no emotional component, unlike the record in Gaultney v. Weinberger, 505 F.2d 943, 946 (5 Cir. 1974). Because of contrary suggestions in the reported cases and in plaintiff’s brief, the Court emphasizes that the lack of medical evidence in the record of a medically determinable physical or mental cause of plaintiff’s alleged headaches precludes a finding of disability on the present record. On the remand, the hearing examiner cannot base a determination of disability only on a finding that plaintiff genuinely believes that he suffers from incapacitating headaches. Additional medical evidence must be adduced before the hearing examiner may make such a determination. It is necessary to make this clear because some courts have held a claimant’s medically unsupported testimony can sustain a determination of disability and that a case should be remanded" }, { "docid": "23273627", "title": "", "text": "failure to prove through testimony he suffered from disabling pain. Allen next asserts the administrative law judge failed to make adequate findings of fact, specifically with regard to whether he in fact had blackouts and feelings of pain, and whether his former wife was a credible witness. The ultimate findings of fact, however, adequately resolved these subordinate issues. The judge specifically found that Allen’s testimony, the primary evidence in support of his allegation of pain, was not credible. He also found that Allen’s “impairments [which included ‘a Personality Disorder and complaints of pain in his eyes’] do not prevent him from performing certain jobs.... ” Thus, there was a clear, though perhaps implicit, rejection of the subjective testimony as to the disabling nature of Allen’s pain. While the findings in this case could be improved upon, they are sufficient for this Court to determine the denial of benefits is supported by substantial evidence. Cf. Acevedo Ramirez v. Secretary of Health, Education and Welfare, 550 F.2d 1286 (1st Cir. 1977) (explicit finding rejecting claimant’s testimony as to his pain not required, in light of other findings); Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974) (while further findings concerning claimant’s pain would have been desirable, findings actually made were sufficient in view of the record); Collins v. Matthews, 456 F.Supp. 813 (S.D. Ga.1978) (unnecessary to make specific findings as to all the facts, since the basis for the denial was clear). Allén’s final contention is that the district court should have remanded the case to the Secretary for additional hearings in light of a new medical report. This report consists of a one-page physical capacities evaluation sheet prepared by a physician identified as G. Lopez, M. D. The district court held the new report did not, warrant a remand, in light of the medical reports that had already been presented to the administrative law judge. The court also noted the report gave no indication it was based on clinical tests or anything more than Allen’s complaints. To justify a remand to the Secretary for consideration of additional evidence, a claimant must" }, { "docid": "22949343", "title": "", "text": "represented by counsel, and the evidence on employability was “exceedingly unsatisfactory,” such that the court considered that there was no substantial evidence to enable the Secretary to make a reasonable determination as to employability. See also Byrd v. Richardson, D.S.C. 1973, 362 F.Supp. 957; Roman v. Secretary of Health, Education and Welfare, D.P.R.1972, 355 F.Supp. 646. In this case, on the other hand, Gaultney was at all times represented by counsel. The judge held three hearings, heard the testimony of numerous witnesses, and read the written reports of others. The burden of proving disability is clearly upon the claimant. Kirkland v. Weinberger, 5 Cir. 1973, 480 F.2d 46; DePaepe v. Richardson, supra. The fact that there may, on unusual occasions, be “good cause” for remand does not relieve the claimant of this burden. Here, Gaultney originally claimed that a back injury was responsible for his pain. The medical evidence, though not unanimous on the point, did not establish that fact. Gaultney then turned to a psychiatric theory, but brought forward no psychiatric evidence of his own. Indeed, the Board-certified psychiatrist, Dr. Merton B. Berger, who did examine Gaultney, reported that there were no emotional components to his pain, and that he feels as much pain when he is at home worrying as when he is out having a good time. The psychiatrist could find no signs to indicate either mental or emotional disturbance which would cause or aggravate Gaultney’s symptoms. There may be, as Gaultney argues, a gap in the evidence as to the possible emotional source of his pain. If there is such a gap, however, it is to be laid at the door of him who bore the burden of proof, Gaultney himself. There was no duty on the Administrative Law Judge to explore further the psychiatric theory. Furthermore, as we have already stated, the Administrative Law Judge did not find that Gaultney was not in pain; he found that he was not disabled within the meaning of the Act. Whether the pain is organic or psychiatric in origin would therefore be immaterial. Affirmed." }, { "docid": "23273628", "title": "", "text": "to his pain not required, in light of other findings); Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974) (while further findings concerning claimant’s pain would have been desirable, findings actually made were sufficient in view of the record); Collins v. Matthews, 456 F.Supp. 813 (S.D. Ga.1978) (unnecessary to make specific findings as to all the facts, since the basis for the denial was clear). Allén’s final contention is that the district court should have remanded the case to the Secretary for additional hearings in light of a new medical report. This report consists of a one-page physical capacities evaluation sheet prepared by a physician identified as G. Lopez, M. D. The district court held the new report did not, warrant a remand, in light of the medical reports that had already been presented to the administrative law judge. The court also noted the report gave no indication it was based on clinical tests or anything more than Allen’s complaints. To justify a remand to the Secretary for consideration of additional evidence, a claimant must establish “good cause.” 42 U.S.C.A. § 405(g). See also Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980). We agree with the district court the new report does not provide good cause. The report is at best vague and inconclusive, and unlike the previous medical reports, does not appear to rest on clinical testing and observation. Moreover, Allen has failed to explain why the report was not obtained prior to the initial hearing before the administrative law judge. See Watts v. Harris, 614 F.2d 515, 516 (5th Cir. 1980). The district court acted within its discretion in denying the motion to remand. In upholding the denial of Allen’s application, we note Allen has already been examined by two psychiatrists. Neither found any signs of mental or emotional disturbance which could cause the symptoms of pain he alleges. The case is thus distinguishable from Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979), where a remand was considered necessary for psychiatric evaluation of the claimant to determine whether the cause of his pain was psychosomatic. In" }, { "docid": "1345400", "title": "", "text": "(6th Cir. 1967). Judicial review of the Secretary’s decision addresses three questions: (1) Whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Strickland v. Harris, 615 F.2d 1103, 1108 (5th Cir. 1980); Frith v. Celebrezze, 333 F.2d 557, 560 (5th Cir. 1964). With respect to the second question-the quantum of evidence-the reviewing Court must look at the record as a whole and take into consideration (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife and others who have observed him; and (4) the claimant’s age, education, and work history. Johnson v. Harris, 612 F.2d 993, 997 (5th Cir. 1980); DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir. 1971). B. Disposition: Affirm, Remand, or Reverse When the decision of the Secretary is supported by substantial evidence, of course, the reviewing court will affirm. O’Bryan v. Weinberger, 511 F.2d 68 (6th Cir. 1975). The Courts have found a number of different reasons to justify a remand for a new hearing before an ALJ. For example, the evidence may be equivocal, or contradictory, and not sufficient to meet the substantial evidence test. Lewis v. Weinberger, 515 F.2d 584 (5th Cir. 1975); Jackson v. Richardson, 449 F.2d 1326 (5th Cir. 1971). Similarly, the court may remand for the purpose of taking specific testimony which was absent from the record. See e. g. Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980) (additional questioning of the vocational expert, and a finding needed on the adequacy of two doctors’ examinations of the claimant); Brenem v. Harris, 621 F.2d 688 (5th Cir., 1980) (further questioning of vocational expert). A remand is appropriate if the ALJ applied erroneous principles in making his findings, McGill v. Harris, 615 F.2d 365 (5th Cir. 1980), or if new" }, { "docid": "17237452", "title": "", "text": "seemed well motivated and appeared to try his hand at the tests. However, it does not appear that the patient is able to maintain gainful employment due to his pain syndrome and orthopedic limitations. Id. at 172. Dr. Osher’s deposition basically repeated his two prior medical reports. Id. at 174-92. The Appeals Council considered this additional evidence. It determined that the therapist’s report was \"an assessment of your complaints and medical limitations, more than an assessment of your vocational qualifications for work.” Id. at 4. It also decided that Osher’s deposition was generally repetitious and/or cumulative of medical evidence already in the record. Id. at 4-5. The Appeals Council concluded that “the additional evidence [was] not persuasive,” found the ALJ’s decision “consistent with the weight of the more probative evidence,” and declined to review the AU’s determination. Id. at 5. Wilson appealed to the district court. The magistrate recommended that the court find the Secretary’s decision supported by substantial evidence. Following this recommendation, the district court affirmed the Secretary. The ALJ determines the disabling nature of pain. Gaultney v. Weinberger, 505 F.2d 943, 945-46 (5th Cir.1974). If substantial evidence supports the determination, this court will affirm. Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.1980). In making such a determination, the ALJ must recognize that pain alone can be disabling even if there is no objective medical evidence to support the claimant’s testimony about pain. See Gaultney, 505 F.2d at 945. At the same time, credibility determinations are for the ALJ. Bloodsworth v. Heckler, 703 F.2d 1233, 1242 (11th Cir.1983). Even so, this court has condemned “sit and squirm” jurisprudence. [T]he ALJ engaged in what had been condemned as “sit and squirm” jurisprudence. In this approach, an ALJ who is not a medical expert will subjectively arrive at an index of traits which he expects the claimant to manifest at the hearing. If the claimant falls short of the index, the claim is denied. As the court observed in Tyler [v. Weinberger, 409 F.Supp. 776 (E.D.Va.1976)], this approach will not only result in unreliable conclusions when observing claimants with honest" }, { "docid": "23273625", "title": "", "text": "ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer. The only contrary evidence offered was testimony by Allen himself and by his former wife as to his “blackouts” and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a “difficult” witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen’s testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for this Court. See, e. g., Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971); Celebrezze v. Maxwell, 315 F.2d 727 (5th Cir. 1963). Allen, however, asserts three grounds of error. He first contends the administrative law judge applied an improper legal standard by basing the denial solely on the lack of objective medical evidence and by disregarding his subjective symptoms of pain. He correctly argues that symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability. See, e. g., DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963). A review of the opinion of the administrative law judge, however, indicates the judge did consider Allen’s symptomology. The judge stated only that “[i]n weighing the evidence, I must take into consideration the fact that [Allen’s] complaints have not been substantiated by any objective medical evidence” (emphasis supplied). The opinion clearly shows the judge based his decision not only on the lack of medical evidence but also on Allen’s" } ]

[ { "docid": "23495334", "title": "", "text": "the period therefore ends on April 24,1997). The same rationale may be applied to a § 2254 petition. See Flanagan v. Johnson, 154 F.3d 196,199-200 & n. 2 (5th Cir.1998) (applying the Flores holding to a § 2254 petition). Because Turner was challenging a state-court conviction, which became final long before the effective date of the AEDPA, Turner had one year from April 24, 1996, to file his § 2254 petition in the district court. See id. Turner did not file his § 2254 petition in the district court until March 10, 1998, making it untimely. Turner contends that his due process rights were violated when the district court dismissed his habeas petition as time-barred. He asserts that he raised four claims in his federal habeas petition and that not all of the claims became time-barred on April 24, 1997. Turner provides no support for this assertion, nor does he attempt to distinguish which of his claims survives the time bar. We must therefore conclude that Turner has failed to allege a due process violation. Turner also makes an argument that the limitations period should be equitably tolled. This court has held that equitable tolling, can apply to the limitation period of § 2244(d). Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998), cert. denied — U.S.-, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). Equitable tolling, however, should apply only in “rare and exceptional circumstances.” Id. at 811. We have held that neither a plaintiffs unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.1991) (age discrimination case). It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason. Id. Turner does not indicate why he waited until March 1998 to pursue federal habeas corpus relief. He does not allege that he was unaware of any of his substantive claims until such time, and he does not allege that officials prevented him from seeking relief. Turner has failed to demonstrate that equitable tolling should apply to his" } ]

[ { "docid": "13275421", "title": "", "text": "therefore found that an extraordinary circumstance was present when a Louisiana state court set an incorrect return date on petitioner’s application for a supervisory writ, causing petitioner to miss Louisiana’s filing deadline and thereby lose his “pending” application for state postconviction relief under § 2244(d)(2). Melancon v. Kaylo, 259 F.3d 401, 407-08 (5th Cir.2001). But the result in Melancon undercuts Manning’s argument. Equitable tolling was unavailable to the petitioner, we held in Melancon, because he did not file his federal habeas petition until more than four months after the denial of his application for a supervisory writ. Id. at 408. Put another way, Louisiana’s misrepresentation did not lighten petitioner’s burden of exercising due diligence. This logic applies even more forcefully to Manning, who, according to the record, did nothing until the Office of Capital Post-Conviction Counsel was appointed on November 17, 2000, more than nineteen months after his judgment became final. For these reasons, Manning has not shown that he diligently pursued his habeas claims. Even if his counsel’s course of conduct starting on November 17, 2000 would constitute due diligence if it had begun earlier, such activity does not negate the nineteen-month-long period during which Manning did not, as far as the record reveals, focus any attention on his petition for habeas relief. Under the precedent of the Supreme Court and this circuit, it is well established that neither Mississippi’s failure to appoint competent counsel nor Manning’s attorneys’ failure to provide meaningful representation excuses this extended period of inactivity. Accordingly, the district court abused its discretion when it held that equitable tolling was available to Manning. 3. In addition to his equitable tolling argument, Manning makes three arguments for why his petition for federal relief complied with the standards set forth in 28 U.S.C. § 2244. First, he argues that the Mississippi Supreme Court accepted his petition for state postconviction relief nunc pro tunc, such that it was filed within one year of his conviction becoming final. See § 2244(d)(1)(A). Second, he argues that Mississippi created an “impediment to filing an application ... in violation of the Constitution or" }, { "docid": "9877698", "title": "", "text": "PER CURIAM: Carlos Flores, Jr., appeals the district court’s denial of relief on \"his 28 U.S.C. § 2254 petition. We affirm the district court’s judgment on grounds that Flores’ § 2254 petition is barred by the one-year statute of limitations found in 28 U.S.C. § 2244(d). I.FACTUAL BACKGROUND AND PROCEDURAL HISTORY On February 25, 1999, a jury found Flores guilty of the felony offenses of murder and deadly conduct. The court of appeals affirmed Flores’ conviction on August 23, 2000. He did not seek a petition for discretionary review. The court of appeals issued its mandate on November 17, 2000. Flores waited until November 15, 2001, to file his state habeas application, which was denied on April 2, 2003. He filed his federal habeas petition December 6, 2002, while the state application was still pending, and the respondent filed a motion to dismiss Flores’ application as time-barred pursuant to the one-year statute of limitations found in 28 U.S.C. § 2244(d). Respondent argued that the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review on September 22, 2000, thirty days after the court of appeals affirmed Flores’ conviction, which constituted the date on which Flores could not seek further direct review. Because the period for Flores to timely file a habeas application therefore expired on September 22, 2001, the state application he filed on November 15, 2001, had no tolling effect. The district court invoked equitable tolling, reached the petition’s merits, and denied relief. Flores now appeals the district court’s denial of relief. II.STANDARD OF REVIEW We review the district court’s decision to invoke equitable tolling for an abuse of discretion. Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir.2002). A court abuses its discretion when it makes an error of law. United States v. Riggs, 314 F.3d 796, 799 (5th Cir.2002). III.DISCUSSION In Roberts v. Cockrell, we held that a state conviction becomes final when the time for seeking direct review expires, regardless of when the state court issues its mandate. 319 F.3d 690, 694 (5th Cir.2003). Under Roberts, Flores’" }, { "docid": "15355556", "title": "", "text": "returned to federal court after exhausting the Atkins claim. Mathis’s predicament was further aggravated because he filed his federal petition on the last day of the AEDPA limitations period, failed to attempt to exhaust his Atkins claim before doing so, and failed to include the claim even though it relied on a constitutional rule in effect for at least nine months before he filed the petition. Accordingly, we hold that Mathis’s habeas litigation strategy choice to withhold an Atkins claim from the initial federal petition, while simultaneously acting so late as to preclude exploration of other relief, did not make the Atkins rule “previously unavailable” to him within the meaning of § 2244(b)(2)(A). 2. Successive State Habeas Petitions and Statutory Tolling In his second argument, Mathis urges that if he had pursued his Atkins claim in a successive state habeas petition before filing his first federal habeas petition, he also risked forfeiting federal review of his exhausted claims because the law was not clear at the time of his first federal habeas petition as to whether the AEDPA statute of limitations would have been tolled on his exhausted claims. Under AEDPA’s timeliness requirements, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). The tolling provision does not state expressly whether the limitations period is tolled as to exhausted claims while a petitioner seeks state habeas relief as to new claims. Rather, “the express language of section § 2244(d)(2) makes clear that tolling is appropriate, without regard to the nature of the claims in the state pleading, as long as the state application challenged ‘the pertinent judgment.’ ” R. Hertz & J. Liebman, 1 Federal Habeas Corpus Practice and Procedure § 5.2b n.56 (5th ed.2005). Mathis urges this court to look to the “unsettled” law in effect in 2002- — when Atkins was decided — to determine whether his successive state habeas petition would have been deemed “properly filed”" }, { "docid": "23155352", "title": "", "text": "Pennsylvania Supreme Court has specifically ruled that Fahy’s PCRA petition was not properly filed as a matter of state law. As a result, because final judgment in Fahy’s case occurred on October 21, 1986, before the new habeas statute became effective on April 24, 1996, Fahy had one year from the statute’s effective date to file his habeas petition. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998). The one year filing deadline thus expired well before Fahy filed his habeas petition in 1999. Fahy’s petition was therefore not statutorily tolled because his PCRA petition was not properly filed. II. Equitable Tolling Fahy delayed filing his federal habeas petition because he believed he was required to pursue a fourth petition for collateral relief in state court. At the time Fahy made this ill-advised choice, he reasonably believed that the state petition was properly filed. The Pennsylvania Supreme Court eventually disagreed, but the filing period for Fahy’s federal habeas petition had run by the time the Court ruled. Fahy claims, and the District Court ruled, that the statute of limitations for filing his habeas petition should have been tolled to allow him to determine if he could maintain his state petition. We have explained that the one year filing deadline contained in 28 U.S.C. § 2244(d)(1) can be subject to equitable tolling only when the principle of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient. Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d Cir.1998). We later enumerated three circumstances permitting equitable tolling: if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999)" }, { "docid": "15355569", "title": "", "text": "denied Hearn an opportunity to sufficiently investigate his Atkins claim. Id. Accordingly, we held that equitable tolling was appropriate. Id. at 456-57. In both cases, the procedural posture and some other circumstance outside the petitioner’s control, in addition to the Texas two-forum rule, warranted equitable tolling. Wilson and Hearn’s initial federal habeas petitions were either filed or pending appeal when Atkins was decided; the Atkins claim could not be raised before or during federal review; and each petitioner would be faced with procedural hurdles to raising the claim subsequently in state or federal court. In contrast, Atkins was decided nine months before Mathis filed his first federal habeas petition. While the Texas two-forum rule heavily influenced Mathis’s litigation strategy, it did not present the same “Hobson’s choice” as present in Wilson and Hearn. 442 F.3d at 878. Instead, Mathis’s case is similar to In re Lewis, where the petitioner waited until the last day of the one-year limitations period to file his successive habeas application in federal court. 484 F.3d 793, 795 (5th Cir.2007). Lewis then argued that the Texas two-forum rule precluded him from timely filing his federal petition raising an Atkins claim. Id. at 797. We concluded that while the Texas two-forum rule “temporarily postponed” Lewis’s ability to file his Atkins claim in state court, it did not prevent him from filing his Atkins claim in state court within the one-year period. Id. at 797-98. As with Lewis, the Texas two-forum rule did not prevent Mathis from pursuing habeas relief on his Atkins claim within the statute of limitations. Atkins was available to Mathis for nine months before he pursued the claim in state court. Based on the facts of Mathis’s case, the Texas two-forum rule does not present the rare and extraordinary circumstance sufficient to warrant equitable tolling. Accordingly, we hold that Mathis is not entitled to equitable tolling, and the district court did not abuse its discretion in refusing to grant equitable tolling. IV. CONCLUSION We hold that Mathis’s successive federal habeas petition did not meet the standard under 28 U.S.C. § 2244(b)(2)(A) and therefore must" }, { "docid": "23670637", "title": "", "text": "argument that he should not be punished for the trial court’s improper setting of the return date on his application can therefore be treated as a request for equitable tolling. Coleman, 184 F.3d at 402 (construing the pro se petitioner’s argument that the “mailbox rule” should apply to his state habeas application as a request for equitable relief). The one year limitations period in § 2244(d)(1) is not a jurisdictional bar and can be equitably tolled in exceptional circumstances. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). The district court’s error in setting the return date of the application might warrant equitable tolling. “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996). Melancon seems to have filed his untimely application for a supervisory writ in accordance with the return date of May 8, 1998, set by the Louisiana trial court. Nonetheless, Melancon is not entitled to equitable tolling. Equitable tolling should only be applied if the applicant diligently pursues § 2254 relief. Scott v. Johnson, 227 F.3d 260, 262 (5th Cir.2000); Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.2000); Coleman, 184 F.3d at 403. After the Louisiana Supreme Court denied Melancon’s application for a supervisory writ, Melancon waited more than four months to file his federal habeas petition. Because Melancon did not expediently file his federal habeas petition, this circumstance is not extraordinary enough to qualify for equitable tolling under § 2244(d)(1). IV For the foregoing reasons, we AFFIRM the district court’s dismissal of Melancon’s § 2254 application as time-barred. AFFIRMED. . Although the Louisiana Court of Appeal noted that Melancon asserted that he filed his application on October 9, 1996, the magistrate judge found that Melancon did not file his application for post conviction relief until November 6, 1996. This disparity does not alter the outcome of the case. . Rule 4-3 provides When an application for writs is sought to review the actions of a" }, { "docid": "21258280", "title": "", "text": "learning that his state petition had been denied, and then, upon learning his subsequent state appeal was also denied, filed his federal habeas petition in less than one month. We held that equitable tolling would apply if there really had been a four month delay in his receiving notice. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.2000). On the other hand, even when a state clerk mistakenly filed the petitioner’s two separate applications for state habeas relief together, overlooking one claim, and did not correct the error until the petitioner contacted the clerk about the error one month later, we denied equitable tolling because the petitioner delayed six months from the time his state application was denied before he filed his federal application. Coleman, 184 F.3d at 402-03. We held that equitable tolling did not apply because the petitioner did not explain his six month delay and that delay, combined with the clerk’s error, did not constitute extraordinary circumstances sufficient to find the district court abused its discretion in denying equitable tolling. Id. at 403. Similarly, in Melancon v. Kaylo, we denied equitable tolling because the petitioner waited just over four months between learning that his state petition had been denied and filing his federal petition, and thus, failed to show extraordinary circumstances because he did not diligently pursue his rights. 259 F.3d 401, 408 (5th Cir.2001). In this case, the district court made a factual finding that the evidence failed to show that the state misled Howland in any way. Further, there was no evidence that state officials interfered with his right to file a writ in state court or failed to mail the writ in a timely manner. Howland alleges that the state court clerk “failed to answer correspondence until May 7, 2001,” after he sent his initial state application on August 26, 2000, by “accident, coincidence, devise, or design.” These allegations, however, are belied by his own admissions. Between August 26, 2000, and May 7, 2001, Howland properly filed two state habeas petitions, on April 18 and April 30, 2001, which the state court clerk processed" }, { "docid": "9347558", "title": "", "text": "because petition was not “properly filed” for failure to comply with Aabama laws governing the location and form of filing); Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir.2000) (“[T]he filing of creative, unrecognized motions for leave to appeal” does not trigger tolling pursuant to § 2244(d)(2)). Where state law mandates that petitions for collateral relief be resolved through a unified system in a definite period, a practice of accepting non-conforming petitions as “properly-filed” for the purposes of AEDPA would encourage prisoners to abuse state post-conviction procedures, undermining the finality of state-law judgments. This is exactly what AEDPA was designed to prevent. Carey, 536 U.S. at 220, 122 S.Ct. 2134 (“The exhaustion requirement serves AEDPA’s goal of promoting comity, finality, and federalism.”) (citation omitted); Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (AEDPA’s purpose is not only to further the interests of comity and federalism, but also to further finality of convictions). We conclude that Satterfield’s King’s Bench Petition was not “properly filed” for purposes of § 2244(d)(2) and therefore did not toll AEDPA’s one-year statute of limitations. Thus, Satterfield’s federal habeas petition should be dismissed as time-barred unless equitable principles warrant tolling of the statute of limitations. C. Satterfield Has Not Demonstrated Diligence and Extraordinary Circumstances Justifying Equitable Tolling of AEDPA’s Statute of Limitations Having failed to meet AED-PA’s one-year statute of limitations, Sat-terfield’s petition can only be saved by application of the doctrine of equitable tolling. Equitable tolling is available “‘only when the principle of equity would make the rigid application of a limitation period unfair.’ ” Merritt, 326 F.3d at 168 (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.2001)). A petitioner seeking equitable tolling bears the burden to show that he diligently pursued his rights and that some “extraordinary circumstance stood in his way.” Pace, 125 S.Ct. at 1814. Equitable tolling may be had if: “(1) the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights mistakenly" }, { "docid": "23076679", "title": "", "text": "to apply the statute of limitations too harshly, we recognize that the equitable tolling doctrine is to be applied only if the relevant facts present sufficiently “rare and exceptional circumstances” that would warrant application of the doctrine. We recently explained that equitable tolling “applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights,” and noted that “excusable neglect” does not support equitable tolling. Ott contends that it would be inequitable to apply the limitations period because he mailed his federal habeas petition for filing on the first business day after receiving notice of the denial of the state application. Moreover, Ott asserts that Texas created an impediment to the timely filing of his petition by its notification of habeas denials through mailed postcards. We find no error in the district court’s decision not to apply the doctrine of equitable tolling to the facts of this case. Ott was represented by counsel for both his state and federal habeas applications. As the district court noted, Ott did not challenge the parole board’s actions until some nineteen years after the underlying conviction and fifteen years after the conviction became final. Further, we underscore that the state habeas application was not filed until one day before the expiration of the AEDPA’s one-year grace period, an action that necessarily mandated a swift filing of the federal habeas application following the denial of the state petition. This was a matter totally within the control of Ott. The state application readily could have been filed a few days earlier, allowing an adequate period for the filing of the federal petition after final denial of the state application. Accordingly, we find that these are not “rare and exceptional” circumstances in which equitable tolling is warranted. Because Ott’s federal habeas corpus petition was not timely filed and because equitable tolling does not apply in this case, the judgment appealed is AFFIRMED. . See Ott v. State, 627 S.W.2d 218 (Tex.App. 1981, petref'd). . The April 1997 habeas petition was actually the" }, { "docid": "22197419", "title": "", "text": "does not support equitable tolling. Id. (citation omitted). If Coleman indeed deposited his state application with prison officials for mailing on September 4, 1996, as he asserts, and he were to be granted equitable tolling from that date until the date it was actually stamped “filed,” the pendence of that application between September 4, 1996, and May 28, 1997, would have tolled the one-year limitations period for 266 days. This would have been more than sufficient to place the § 2254 claims within the one-year limitations period of § 2244(d)(1). Documents attached by Coleman to his reply to the respondent’s answer suggest that he did mail both state applications on September 4 or 5, 1996. Those documents appear to support Coleman’s contention that he mailed both applications in the same envelope, but that the state clerk mistakenly filed them together and separately filed the application concerning the instant conviction only after Coleman contacted the clerk about the error approximately one month later. The respondent, the magistrate judge, and the district court failed to address any of these contentions or documents. We nevertheless conclude, however, that Coleman is not entitled to equitable tolling. In order for equitable tolling to apply, the applicant must diligently pursue his § 2254 relief. In this case, Coleman did not file his § 2254 petition until approximately six months after learning of the denial of his state postconviction application. As this court has noted, “equity is not intended for those who sleep on their rights.” See Fisher v. Johnson, 174 F.3d 710 (5th Cir.1999) (citing Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir.1989)). Coleman should have attempted to expediently file his federal habeas petition upon receiving notice that his state petition had been denied. Because Coleman does not explain the six-month delay between being notified about his state application and filing his federal petition, we hold that his circumstance is not extraordinary enough to qualify for equitable tolling under § 2244(d)(1). B In his appellate brief, Coleman urges this court to reconsider its denial of his COA application with respect to his challenge" }, { "docid": "22197417", "title": "", "text": "state habeas applications. Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, we will examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1). In this case, Coleman’s pro se brief is entitled to liberal construction. Humphrey v. Cain, 120 F.3d 526, 530 n. 2 (5th Cir.1997). We may therefore liberally construe Coleman’s Houston v. Lack argument to be a contention that his submission for mailing of his application attacking the conviction in the February case on September 4, 1996, entitles him to equitable toling of the limitation period of § 2244(d)(1). The one-year limitations provision “does not operate as a jurisdictional bar and can, in appropriate exceptional circumstances, be equitably tolled.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). The district court in Davis had granted a death row habeas petitioner several extensions between February 1997 and May 1998 to file his § 2254 petition, but then denied the petition as untimely. See id. at 808. Without formulating specific requirements for determining whether equitable tolling principles should apply in the § 2244(d) context, this court concluded that the petitioner in his COA application had made a credible showing that the district court erred in dismissing his petition as untimely. Id. at 812. Davis thus did not involve circumstances like those in Coleman’s case, in which Coleman essentially contends that delays in the processing of his state court postconviction application prevented him from complying with the one-year limitations period. “The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.” Davis, 158 F.3d at 810 (citation and internal quotation marks omitted). “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996). A “ ‘garden variety claim of excusable neglect’ ”" }, { "docid": "23076678", "title": "", "text": "also note that judicial efficiency does not require a petitioner to begin federal habeas proceedings until the state conviction becomes final upon direct review, which occurs upon denial of certio-rari by the Supreme Court or expiration of the period for seeking certiorari. For state post-conviction proceedings, however, the post-conviction application becomes final after a decision by the state’s high court. Requesting relief from the Supreme Court is not necessary for prosecuting state habeas relief and is irrelevant to federal habeas jurisdiction. Thus, unlike direct review, there is no judicial interest in habeas proceedings for tolling the limitations period for Supreme Court certiora-ri petitions. Accordingly, the period for seeking a petition for certiorari does not toll Ott’s limitations period under § 2244(d)(2). II Ott next maintains that the doctrine of equitable tolling should extend the limitations period. We have held that the AEDPA’s limitations period is not jurisdictional, but is subject to equitable tolling principles. We review the district court’s decision not to invoke the doctrine of equitable tolling for abuse of discretion. Although cautious not to apply the statute of limitations too harshly, we recognize that the equitable tolling doctrine is to be applied only if the relevant facts present sufficiently “rare and exceptional circumstances” that would warrant application of the doctrine. We recently explained that equitable tolling “applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights,” and noted that “excusable neglect” does not support equitable tolling. Ott contends that it would be inequitable to apply the limitations period because he mailed his federal habeas petition for filing on the first business day after receiving notice of the denial of the state application. Moreover, Ott asserts that Texas created an impediment to the timely filing of his petition by its notification of habeas denials through mailed postcards. We find no error in the district court’s decision not to apply the doctrine of equitable tolling to the facts of this case. Ott was represented by counsel for both his state and federal habeas" }, { "docid": "15355570", "title": "", "text": "then argued that the Texas two-forum rule precluded him from timely filing his federal petition raising an Atkins claim. Id. at 797. We concluded that while the Texas two-forum rule “temporarily postponed” Lewis’s ability to file his Atkins claim in state court, it did not prevent him from filing his Atkins claim in state court within the one-year period. Id. at 797-98. As with Lewis, the Texas two-forum rule did not prevent Mathis from pursuing habeas relief on his Atkins claim within the statute of limitations. Atkins was available to Mathis for nine months before he pursued the claim in state court. Based on the facts of Mathis’s case, the Texas two-forum rule does not present the rare and extraordinary circumstance sufficient to warrant equitable tolling. Accordingly, we hold that Mathis is not entitled to equitable tolling, and the district court did not abuse its discretion in refusing to grant equitable tolling. IV. CONCLUSION We hold that Mathis’s successive federal habeas petition did not meet the standard under 28 U.S.C. § 2244(b)(2)(A) and therefore must be dismissed. Even if the petition met the standard, we hold that the petition was time-barred under AEDPA’s statute of limitations, and the district court did not abuse its discretion when it denied equitable tolling. AFFIRMED. . The facts of the crime are described in one of our earlier opinions in this case. In re Mathis, 483 F.3d 395, 396 (5th Cir.2007). . Ex parte Soffar permits Texas courts to consider a subsequent state habeas application \"if the federal court with jurisdiction over a parallel writ enters an order staying its proceeding to allow the habeas applicant to pursue his unexhausted claims in Texas state court.” 143 S.W.3d at 804. Before Soffar, Texas courts routinely dismissed subsequent state habeas applications if a federal petition was pending simultaneously, even if the federal court stayed its proceedings. See Ex parte Powers, 487 S.W.2d 101 (Tex.Crim.App.1972). .On March 23, 2004, Mathis also filed a motion for reconsideration in the Texas Court of Criminal Appeals, asking the court to reinstate his second state habeas application (which included his Atkins" }, { "docid": "23696913", "title": "", "text": "him about his options with respect to the mixed petitions and the stay motions constitutes prejudicial error. Second, the district judge in Green did not mislead Green when he informed him that he had the option of dismissing his mixed petition without prejudice in order to return to state court to exhaust his then-unexhausted claims. At the time that the district court dismissed Green’s initial habeas petition without prejudice, Green still had almost 11 months remaining in his one-year AEDPA statute of limitations in which to exhaust his then-unexhausted claims. Finally, there is no indication that Green ever filed a motion to stay the federal habeas proceedings so that he could exhaust the unexhausted claims in his initial mixed petition. Ford did file stay motions. The district court’s error in failing to inform Ford that his motions could not be considered unless he opted to amend his mixed petition and dismiss his then-unexhausted claims is sufficient, standing alone, to merit relief. . Although we need not reach the question here, Ford would also be entitled to relief under equitable tolling principles. The district court's error in failing properly and fully to inform Ford about his options with respect to the mixed petitions and in misleading him as to the legal effect of a dismissal of his petitions were \"extraordinary circumstances\" beyond Ford's control that would require equitable tolling of AEDPA's statute of limitations. See, e.g., Tillema, 253 F.3d at 504 (holding that the district court's failure to afford a federal habeas petitioner who filed a mixed petition the opportunity to abandon his sole unexhausted claim as an alternative to dismissal of his first habeas petition entitled him to equitable tolling); Jorss v. Gomez, 266 F.3d 955, 957-58 (9th Cir.2001) (holding that the district court's erroneous dismissal of Jorss's timely-filed habeas petition as unex-hausted constitutes an extraordinary circumstance that equitably tolled AF.DPA's statute of limitations). However, because we grant Ford relief on statutory grounds, we do not resolve any equitable tolling claim here. . See supra notes 2 & 4 (listing the new claims). . With respect to the newly-asserted claim" }, { "docid": "18523205", "title": "", "text": "a habeas petition is pending in federal court is not tolled under 28 U.S.C. § 2244(d)(2). See Duncan, 533 U.S. at 180, 121 S.Ct. 2120 (“[I]f the statute were construed so as to give applications for federal review the same tolling as applications for state collateral review, then § 2244(d)(2) would furnish little incentive for individuals to seek relief from the state courts before filing federal habeas petitions.”); Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.2001). Moreover, Mr. Adkins improperly relies on the Second Circuit’s case in Zarvela in support of his position that the district court should have stayed, rather than dismissed, his case. Zarvela is not relevant to this case. In Zarvela, the Second Circuit addressed the risks inherent in dismissal of a mixed petition for habeas relief (that is, one that contains both exhausted and unexhausted claims) and held that, as a result of the hurdles imposed by AED-PA’s one-year limitations period, a stay rather than dismissal of exhausted claims “will be preferable” and is “the only appropriate course in cases ... where an outright dismissal could jeopardize the timeliness of a collateral attack.” 254 F.3d at 380. Here, however, the district court acted properly in dismissing Mr. Adkins’s application for federal habeas relief. Unlike Zarvela, Mr. Adkins did not present both exhausted and unexhausted claims in his 2005 application. In fact, the district court was quite clear that Mr. Adkins failed to exhaust any of his asserted grounds for federal habeas relief. See Adkins, 2005 WL 3543735, at *2. Thus, while the district court may have chosen to exercise its discretion to stay the case while Mr. Adkins exhausted his remedies, the court’s decision to dismiss the petition was not in error and is no cause for tolling AEDPA’s time limitation. Mr. Adkins also argues that equitable tolling is appropriate because he needed to obtain copies of his state habeas paperwork before filing his application for federal habeas relief. As the Court has previously stated, Mr. Adkins must demonstrate that he acted with reasonable diligence for the entire period he seeks to have tolled. See" }, { "docid": "21258278", "title": "", "text": "should grant him equitable tolling under § 2244(d)(1) as of August 28, 2000. We apply the doctrine of equitable tolling sparingly. As we have explained: The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable. Equitable tolling will be granted in rare and exceptional circumstances, and will not be granted if the applicant failed to diligently pursue his rights. Equitable tolling applies principally when the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights. [I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing. Larry, 361 F.3d at 896-97 (internal quotation marks and citations omitted) (alteration in Larry). In addition, the habeas petitioner bears the burden of establishing that equitable tolling is warranted. Alexander, 294 F.3d at 629. Encapsulating the diligence and extraordinary circumstances test into two elements, the Supreme Court has stated, “To be entitled to equitable tolling, [the petitioner] must show (1) that he has been pursing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida, — U.S. -, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Extraordinary circumstances preventing timely filing must be just that, extraordinary. In Alexander, for example, we held that a district court did not abuse its discretion in granting equitable tolling. There, the petitioner’s federal habeas petition had been dismissed by the district court without prejudice for failure to exhaust state remedies, and when this court affirmed the dismissal on appeal, it used language that actively misled the petitioner into believing that regardless of the limitations period, if the state court denied relief, he could renew his federal petition. Alexander, 294 F.3d at 629-30. In another case, a petitioner was not informed that his state petition had been denied until four months after the denial, but he filed an out-of-time state appeal within three days of" }, { "docid": "9877702", "title": "", "text": "state or federal law controlled; Flores should have elected to err on the side of caution and abide by the earlier of the two possible deadlines. See Fierro, 294 F.3d at 683 (stating that “such uncertainty should have militated against taking an unnecessary risk by waiting to file a motion for authorization and habeas petition”). This Court, “and the district courts, guided by precedent, must examine each case on its facts to determine whether it presents sufficiently Tare and exceptional circumstances’ to justify equitable tolling.” Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999) (citation omitted). Nothing in the record suggests that Flores’ situation was unique for the purposes of equitable tolling, nor that the state or court in any way prevented him from asserting his rights. The district court based its decision to invoke equitable tolling on the premise that Flores faced a dilemma between filing his state habeas application within the one-year limitations period, and exhausting his claims in state court. While it is true that, under Texas law, a state habeas application filed before the issuance of the court of appeal’s mandate is premature and is subject to dismissal without prejudice, see Ex Parte Johnson, 12 S.W.3d at 473, the court of appeals issued its mandate on November 17, 2000, leaving Flores nearly ten months in which to file his habeas application. Rather than placing Flores “in a bind,” as the district court thought, ten months was ample time for him, with the assistance of counsel, to compose a habeas petition for filing in state and federal court. See Fisher, 174 F.3d at 715 (pro se petitioner who was incapacitated when placed in psychiatric ward for seventeen days not entitled to equitable tolling where he still had over six months to complete his federal habeas petition after his return to his usual quarters). Rather than diligently pursuing his relief," }, { "docid": "23670636", "title": "", "text": "ha-beas petition was therefore not tolled until May 8, 1998, because his application for a supervisory writ with the Court of Appeal was approximately five months later than provided for in Rule 4-3. Because the time in which the limitations period was running exceeded 365 days, Melancon’s federal habeas claim is time-barred. Ill Melancon argues that his application for a supervisory writ to the Court of Appeals was not timely because the Louisiana trial court incorrectly set the return date on the application. Generally, “when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, we will examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1).” Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999). Although the parties in this case did not explicitly raise the issue of equitable tolling, Melancon’s pro se application for habeas relief is entitled to liberal construction. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Melancon’s argument that he should not be punished for the trial court’s improper setting of the return date on his application can therefore be treated as a request for equitable tolling. Coleman, 184 F.3d at 402 (construing the pro se petitioner’s argument that the “mailbox rule” should apply to his state habeas application as a request for equitable relief). The one year limitations period in § 2244(d)(1) is not a jurisdictional bar and can be equitably tolled in exceptional circumstances. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). The district court’s error in setting the return date of the application might warrant equitable tolling. “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996). Melancon seems to have filed his untimely application for a supervisory writ in accordance with the return date of May 8, 1998, set by the Louisiana trial court. Nonetheless, Melancon is" }, { "docid": "21258279", "title": "", "text": "that he has been pursing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida, — U.S. -, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Extraordinary circumstances preventing timely filing must be just that, extraordinary. In Alexander, for example, we held that a district court did not abuse its discretion in granting equitable tolling. There, the petitioner’s federal habeas petition had been dismissed by the district court without prejudice for failure to exhaust state remedies, and when this court affirmed the dismissal on appeal, it used language that actively misled the petitioner into believing that regardless of the limitations period, if the state court denied relief, he could renew his federal petition. Alexander, 294 F.3d at 629-30. In another case, a petitioner was not informed that his state petition had been denied until four months after the denial, but he filed an out-of-time state appeal within three days of learning that his state petition had been denied, and then, upon learning his subsequent state appeal was also denied, filed his federal habeas petition in less than one month. We held that equitable tolling would apply if there really had been a four month delay in his receiving notice. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.2000). On the other hand, even when a state clerk mistakenly filed the petitioner’s two separate applications for state habeas relief together, overlooking one claim, and did not correct the error until the petitioner contacted the clerk about the error one month later, we denied equitable tolling because the petitioner delayed six months from the time his state application was denied before he filed his federal application. Coleman, 184 F.3d at 402-03. We held that equitable tolling did not apply because the petitioner did not explain his six month delay and that delay, combined with the clerk’s error, did not constitute extraordinary circumstances sufficient to find the district court abused its discretion in denying equitable tolling. Id. at" }, { "docid": "22197420", "title": "", "text": "of these contentions or documents. We nevertheless conclude, however, that Coleman is not entitled to equitable tolling. In order for equitable tolling to apply, the applicant must diligently pursue his § 2254 relief. In this case, Coleman did not file his § 2254 petition until approximately six months after learning of the denial of his state postconviction application. As this court has noted, “equity is not intended for those who sleep on their rights.” See Fisher v. Johnson, 174 F.3d 710 (5th Cir.1999) (citing Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir.1989)). Coleman should have attempted to expediently file his federal habeas petition upon receiving notice that his state petition had been denied. Because Coleman does not explain the six-month delay between being notified about his state application and filing his federal petition, we hold that his circumstance is not extraordinary enough to qualify for equitable tolling under § 2244(d)(1). B In his appellate brief, Coleman urges this court to reconsider its denial of his COA application with respect to his challenge to the April 4 charge. He asserts that the court erred in determining that his ineffective assistance of counsel claims regarding that conviction were not adequate to deserve encouragement to proceed further. Coleman has presented nothing in his request for reconsideration that would alter the ruling on the COA application. We therefore deny Coleman’s request for reconsideration. Ill For the foregoing reasons, we AFFIRM the ruling of the district court dismissing Coleman’s habeas petition with respect to the February 7 charge as time-barred. We further AFFIRM the district court’s ruling on the merits with respect to the April 4 charge. AFFIRMED. . As suggested by the respondent, postconviction proceedings in Texas are governed by criminal rule, see Tex.R.Crim.P. art. 11.07, not the civil rule cited by Coleman." } ]

[ { "docid": "22779070", "title": "", "text": "21 U. S. C. § 337(a). See Green & Schultz, Tort Law Deference to FDA Regulation of Medical Devices, 88 Geo. L. J. 2119, 2133 (2000) (“Physicians may prescribe drugs and devices for off-label uses”); Smith, Physician Modification of Legally Marketed Medical Devices: Regulatory Implications Under the Federal Food, Drug, and Cosmetic Act, 55 Food & Drug L. J. 245, 251-252 (2000) (discussing off-label use in terms of the “practice of medicine doetrinef, which] stands firmly for the proposition that regulatory efforts are directed primarily at device marketing by manufacturers, not device use by physicians”); Beck & Azari, FDA, Off-Label Use, and Informed Consent: Debunking Myths and Misconceptions, 53 Food & Drug L. J. 71, 72 (1998) (“Off-label use is widespread in the medical community and often is essential to giving patients optimal medical care, both of which medical ethics, FDA, and most courts recognize”). In light of the likely impact that the fraud-on-the-FDA claims would have on the administration of the Administration’s duties, we must reject respondent’s contention that these claims “will... affect only the litigants and will not have the kind of direct impact on the United States, which preemption is designed to protect from undue incursion.” Brief for Respondent 30 (citing Miree v. DeKalb County, 433 U. S. 25 (1977)). Justice Stevens, with whom Justice Thomas joins, concurring in the judgment. As the Court points out, an essential link in the chain of causation that respondent must prove in order to prevail is that, but for petitioner’s fraud, the allegedly defective orthopedic bone screws would not have reached the market. The fact that the Food and Drug Administration (FDA) has done nothing to remove the devices from the market, even though it is aware of the basis for the fraud allegations, convinces me that this essential element of the claim cannot be proved. I therefore agree that the case should not proceed. This would be a different ease if, prior to the instant litigation, the FDA had determined that petitioner had committed fraud during the § 510(k) process and had then taken the necessary steps to remove" } ]

[ { "docid": "8256318", "title": "", "text": "sales representatives for help detailing the product to doctors. See Zyprexa Patient Profiles, Pfs.’ Ex. 480; Part XVIII.B. l.b, infra (describing the hypothetical patient profile of “Donna”). She is presented as a widow living independently, but at risk for nursing home placement because of agitation, restlessness and paranoia. See Zyprexa Patient Profiles 2. In sum, with the Martha spread, Lilly conflates various pieces of evidence—selected trials and evidence from patients with schizophrenia—to make up a story that Zyprexa is safe and effective for treating various behavioral symptoms in the elderly, including Alzheimer’s disease, and improving the patients’ cognitive function. In the spread, they show their intention to market this drug broadly to primary care physicians and elderly people generally. The primary care physician would interpret the Martha Spread as a claim that Zyprexa is effective for Alzheimer’s disease and behavioral symptoms in old age. Schneider Decl. 28-29. Hi. Ads in Geriatric Journals During the late 1990s and early 2002, Lilly published Zyprexa advertisements in geriatric medical journals that, according to Dr. Schneider, were false and misleading, and which suggested that Zyprexa could be used for elderly people with dementia and people with behavioral signs and symptoms that have not been diagnosed. Id. at 30-38. Specifically, they “were intended to encourage geriatricians to prescribe Zyprexa for elderly patients with dementia and patients with undiagnosed behavior problems. The advertisements were not aimed at treating schizophrenia or bipolar illness.” Id. at 30. He points to ten advertisements as examples, one of which being the following: Advertisement # 3 states, “For your patients with SYMPTOMS and BEHAVIORS related to Psychotic Disorders ...” and then follows with, “Goals of Therapy: symptoms and behaviors STABILIZE hostility, hallucinations, delusions; the Zyprexa Profile MAXIMIZE tolerability, ease of use, safety; on additional benefits CAPITALIZE benefits for depression, anxiety, social withdrawal, cognition.” The front page goes on to say in small print, “In 6-week acute phase trials, the most common treatment emergent adverse events associated with Zyprexa was somnolence ...” The second page with fine print on prescribing information under Indications and Uses is only that Zyprexa is “for the" }, { "docid": "8256333", "title": "", "text": "... Yes’ to question 2.” Id. at 2. In Dr. Klotz’s view, Lilly’s promotion of the MDQ as Zyprexa prescription aid was misleading: “Screening instruments are not diagnostic instruments. They suggest that a patient in a selection group should receive further evaluation or referral to a specialist if the diagnosis is outside the realm of expertise of the clinician. Screening instruments in no way suggest treatment.” Klotz Decl. 11. The MDQ “does not discriminate between subtypes of bipolar disorder” and “is insufficient to differentially diagnose active bipolar mania from phenotypically similar illnesses.” Id. at 10-12. Although Zyprexa is only FDA-approved for certain types of bipolar disorder, the MDQ implies that Zyprexa is appropriate for all bipolar types. Assuming Lilly’s marketing materials promoted the message that if you have the disease, you need the medicine, that would be “unsupported in the literature and medically inappropriate.” Id. at 12. Dr. Klotz went as far as calling use of the MDQ “dangerous.” See id. These limitations on the sensitivity and applicability of the MDQ did not stop Lilly from encouraging primary care physicians to diagnose serious psychiatric illnesses using this thumbnail questionnaire: of the 100,000 call notes produced in this litigation (0.7% or less of the total number of call notes Lilly has for Zyprexa), approximately 3,000 entries mention the MDQ. b. Lilly’s “Donna” Patient Profile Lilly’s marketing materials also present a patient profile of an abstract “Donna,” which was constructed to exemplify and detail the symptoms and history of a hypothetical patient who was suffering from a mental illness that should be treated with Zyprexa. See also Part XVIII.A.5.b.ii, supra (describing the hypothetical older widow “Martha” profile used to market to the geriatric market). Lilly’s marketing materials described “Donna” as a mother of two children in her early 30s who is “unable to focus,” has “depressive symptoms” and cannot “get on with her life.” She chiefly complained of sleeping too much and having trouble concentrating at work and home. Donna had been on SSRIs for depression in the past but has never been prescribed an antipsychotic. Primary care physicians were encouraged to" }, { "docid": "8256268", "title": "", "text": "Lilly sought to expand Zyprexa’s use in patients with symptoms and conditions that were completely unrelated to schizophrenia (and, later, to bipolar mania, for which Zyprexa was approved). For many of these off-label indications, Lilly’s efforts involved promoting Zyprexa to primary care physicians, who are generally less familiar with antipsychotic medications. (h) Lilly “sought to position Zyprexa as a ‘foundational mood stabilizer’ by focusing on ‘behavior treatment’ and ‘reducing symptoms associated with mood, thought, and behavioral disturbances.’ ” Sales of Zyprexa associated with treatment of depression, for which it has never been approved, are estimated to have reached nearly $3 billion from 1999 to 2005. In addition, Lilly promoted the utilization of Zyprexa in the elderly for symptoms of dementia, a use for which a black box warning was ultimately added to Zyprexa’s label due to an increased mortality risk. Finally, Lilly promoted the use of Zyprexa in children for a wide range of indications including Tourettes Syndrome, poor impulse control, bipolar disorder and stuttering. (i) In summary, Lilly failed to adequately warn about Zyprexa’s known association with diabetes and diabetes-related injuries and of the need to provide baseline screening and monitoring to prevent such complications from occurring, while overselling the comparative effectiveness of the drug. Moreover, Lilly undertook promotion and sales of Zyprexa for unapproved uses, many of which were unsupported by clinical evidence. Rosenthal Deck 7-9 (footnotes omitted). A jury could find these assumptions, findings and calculations and those of the other plaintiffs’ experts accurate. Assuming these allegations will be proven, Dr. Rosenthal found the economic effect on the putative class was the following: a) the economic value of Zyprexa to the class is less than that conveyed by Lilly’s sales, marketing and promotional efforts; that is, there is a difference between the economic welfare of the class in reality compared with the perception Lilly allegedly created; and b) the prices and quantities of Zyprexa sold during the class period were higher than they would be absent the allegedly unlawful practices. Id. at 10. b. Lilly’s Unlawful Marketing Increased Sales: The “Quantity Effect ” The impact of promotion" }, { "docid": "21221287", "title": "", "text": "of developing diabetes in the European Union, Australia, and Canada than in the United States. The European Union’s Agency for the Evaluation of Medicinal Products required Lilly to discuss the risks of hyperglycemia and diabetes in Zyprexa’s label in 1999. Unlike the American label, the European Union label contained an explicit warning regarding diabetes, and the Australian and Canadian labels contained explicit precautions regarding diabetes. D. Lilly’s Promotion of Zyprexa 1. Pre-September 2003 Label Lilly sales representatives marketed and promoted Zyprexa directly to physicians. In the late nineteen nineties, as scientific studies began to posit a link between Zy-prexa and hyperglycemia and diabetes, the sales department struggled to find an appropriate way to address those risks with physicians. In one internal email exchange in November 1998 within Lilly’s medical marketing group, a salesperson suggested the following points be made in response to “recent reports linking the use of olanzapine [Zyprexa] and the development of diabetes”: “Use of antipsychotics may result in weight gain.... Patients who gain weight may develop insulin resistance which may lead to hyperglycemia and diabetes.” In response to that suggestion, a senior executive within the medical group stated the following: “I do have concerns regarding making any connections between olan-zapine [Zyprexaj-induced weight gain and hyperglycemia. Therefore, in my opinion, I would not include your following statement: ‘Patients who gain weight may develop insulin resistance which may lead to hyperglycemia and diabetes.’ ” Zyprexa was approved by the FDA for treating schizophrenia and bipolar disorder, two conditions usually managed by psychiatrists. In late 2000, however, Lilly decided to begin directing its Zyprexa marketing efforts towards primary care physicians (“PCPs”). This strategy was outlined by the company as follows: Following several months of study by the LillyUSA Zyprexa Brand Team, the affiliate approved the recommendation that Lilly actively promote Zyprexa to selected current primary care prescriber targets.... We believe there to be significant unmet medical need among office-based primary care physicians.... Zyprexa’s profile is ideal for primary care (safe, simple, well-tolerated, effective, versatile). Zyprexa would enjoy first mover advantage in this segment. ... Challenges: Most PCPs currently prescribe a" }, { "docid": "15012320", "title": "", "text": "argue that Lilly shifted its marketing efforts to primary-care physicians with the intention of marketing off-label prescriptions of Zyprexa for such conditions as anxiety, depression, and dementia. Lilly’s marketing campaign targeting primary-care physicians was known as “Viva Zyprexa.” Lilly internally announced “Viva Zyprexa” in March 2001. The campaign focused on prescribing Zyprexa to treat isolated symptoms not tied to a clinical diagnosis, rather than treatment of the specific conditions — bipolar disorder and schizophrenia — for which Zyprexa had been approved by the FDA. For example, Lilly created profiles of hypothetical patients as examples of patients who could be treated with Zyprexa. One such hypothetical patient was Donna, “a single mom in her mid-30s appearing in your office in drab clothing and seeming somewhat ill at ease. Her chief complaint is that she feels anxious and irritable.” Lilly suggested that sales representatives say that “when we look at efficacy in a patient like Donna, Zyprexa has been shown to improve mood, anxiety levels, and disrupted sleep patterns.... [W]hat Zyprexa will mean to a patient like Donna is that she will have less anxiety, less irritability and be able to sleep better.” Notably, the materials do not state that Donna was diagnosed with bipolar disorder or schizophrenia, the two conditions that the FDA approved Zyprexa to treat. Another hypothetical patient, “Martha,” posited residents of nursing homes as ideal candidates for Zyprexa prescriptions. Lilly assigned 280 representatives to a “long-term care” sales force aimed at “driving] the nursing home business.” Internal documents stated that Lilly’s number one strategy was to “establish Zyprexa as a first line choice in the treatment of the elderly patient who are [sic ] experiencing behavior or cognitive symptoms.” Lilly pursued this market, suggesting Zyprexa as beneficial for patients suffering from dementia, even though no evidence existed that Zyprexa was an effective treatment for dementia and Zyprexa had detrimental effects on the cognitive functioning of patients with Alzheimer’s. Lilly also distributed a “Mood Disorder Questionnaire” (“MDQ”) to primary-care physicians. The questionnaire asked a series of yes or no questions resulting in a positive or negative screen. Although screening" }, { "docid": "15012321", "title": "", "text": "Donna is that she will have less anxiety, less irritability and be able to sleep better.” Notably, the materials do not state that Donna was diagnosed with bipolar disorder or schizophrenia, the two conditions that the FDA approved Zyprexa to treat. Another hypothetical patient, “Martha,” posited residents of nursing homes as ideal candidates for Zyprexa prescriptions. Lilly assigned 280 representatives to a “long-term care” sales force aimed at “driving] the nursing home business.” Internal documents stated that Lilly’s number one strategy was to “establish Zyprexa as a first line choice in the treatment of the elderly patient who are [sic ] experiencing behavior or cognitive symptoms.” Lilly pursued this market, suggesting Zyprexa as beneficial for patients suffering from dementia, even though no evidence existed that Zyprexa was an effective treatment for dementia and Zyprexa had detrimental effects on the cognitive functioning of patients with Alzheimer’s. Lilly also distributed a “Mood Disorder Questionnaire” (“MDQ”) to primary-care physicians. The questionnaire asked a series of yes or no questions resulting in a positive or negative screen. Although screening tests are not diagnostic instruments and do not suggest treatment, and the MDQ was not sensitive enough to diagnose bipolar disorder (much less the limited types of bipolar disorder for which Zyprexa was approved), the MDQ became a significant source of Zyprexa prescriptions. By 2002, almost two-thirds of Zyprexa prescriptions for bipolar disorder were for off-label uses. It is unlikely that TPPs paying for prescriptions were aware of the increased rate of off-label prescriptions at the time, as PBMs generally do not track off-label prescriptions of a drug. Such tracking is only possible if the drug is subject to a prior authorization program; such programs are in place for fewer than two percent of prescriptions (and are not common with respect to antipsychotic medication). E. Sales After the label change in September 2003, consumption of Zyprexa decreased. The peak of Zyprexa prescriptions occurred in 2003, when 11.092 million prescriptions were issued. In 2004, the number of Zyprexa prescriptions fell to 9.765 million, and prescriptions in 2006 were projected to fall still further to 6.901 million." }, { "docid": "8256162", "title": "", "text": "treat the patient. Key barriers to uptake include PCP’s lack of training in this category, limited time with patients, and an aversion to perceived risk. Zyprexa’s primary indications—schizophrenia and bipolar—are not viewed as PCP-treated conditions, so there’s not a specific indication for Lilly reps to promote in the PCP segment Position: Zyprexa: The safe, proven solution in mood, thought, and behavioral disorders. We will emphasize safety to address barriers to adoption____ The word ‘solution’ speaks to unmet medical need, and enables the PCP to take control of clinical situations that previously had led to referrals and/or poor outcomes. ‘Mental disorders’ is intentionally broad and vague, providing latitude to frame the discussion around symptoms and behaviors rather than specific indications. In re Zyprexa Prods. Liab. Litig., 489 F.Supp.2d 230, 251 (E.D.N.Y.2007). The resulting PCP-direeted marketing campaign, titled “Viva Zyprexa,” was announced at a national sales meeting in March 2001. Evid. Hr’g Tr. 754 (Abramson). Prior to this time, Zyprexa had been prescribed almost exclusively by psychiatrists. An essential part of Lilly’s marketing plan was encouraging PCPs to think differently about both their patients and Zyprexa. Rather than advertising its use for specific disorders, Lilly marketed Zyprexa for symptoms commonly encountered by PCPs, encouraging doctors to treat patients without making a diagnosis at all: One-third of all patients, all psychiatric patients, do not fit into a DSM category. They have ooms, they just don’t neatly fit into a category. But yet you got to treat anxiety, agitation, depression where it exists. Pfs.’ Fact Proffer at II.C.2.C. (While the symptoms of dementia and depression overlap to some extent with those of schizophrenia and bipolar mania, these are different and distinguishable diagnoses.) Although the FDA had never approved Zyprexa as a “solution [for] mood, thought and behavioral disorders,” it was Lilly’s plan to do just that—to “redefine” the way PCPs treated those diseases. Marketing Zyprexa as a “mood stabilizer,” Lilly asserted that “Zyprexa safely stabilizes behavioral symptoms.” The company told its sales force: The [primary care] doctor is thinking that he does not see schizophrenic or bipolar patients, but he probably does see patients" }, { "docid": "21221288", "title": "", "text": "hyperglycemia and diabetes.” In response to that suggestion, a senior executive within the medical group stated the following: “I do have concerns regarding making any connections between olan-zapine [Zyprexaj-induced weight gain and hyperglycemia. Therefore, in my opinion, I would not include your following statement: ‘Patients who gain weight may develop insulin resistance which may lead to hyperglycemia and diabetes.’ ” Zyprexa was approved by the FDA for treating schizophrenia and bipolar disorder, two conditions usually managed by psychiatrists. In late 2000, however, Lilly decided to begin directing its Zyprexa marketing efforts towards primary care physicians (“PCPs”). This strategy was outlined by the company as follows: Following several months of study by the LillyUSA Zyprexa Brand Team, the affiliate approved the recommendation that Lilly actively promote Zyprexa to selected current primary care prescriber targets.... We believe there to be significant unmet medical need among office-based primary care physicians.... Zyprexa’s profile is ideal for primary care (safe, simple, well-tolerated, effective, versatile). Zyprexa would enjoy first mover advantage in this segment. ... Challenges: Most PCPs currently prescribe a low volume of antipsychotics and mood stabilizers. Many PCPs will refer patients in need to psychotropic treatment to a specialist rather than treat the patient. Key barriers to uptake include PCP’s lack of training in this category, limited time with patients, and an aversion to perceived risk. Zy-prexa’s primary indications — schizophrenia and bipolar — are not viewed as PCP-treated conditions, so there’s not a specific indication for Lilly reps to promote in the PCP segment Position: Zyprexa: The safe, proven solution in mood, thought, and behavioral disorders. We will emphasize safety to address barriers to adoption.... The word ‘solution’ speaks to unmet medical need, and enables the PCP to take control of clinical situations that previously had led to referrals and/or poor outcomes. ‘Mental disorders’ is intentionally broad and vague, providing latitude to frame the discussion around symptoms and behaviors rather than specific indications. 2. Post-September 2003 Label After the September 2003 label change, see supra Part III.B.l, and the ADA Consensus Conference, see supra Part III.B.2, Lilly sales representatives remained reluctant to discuss" }, { "docid": "8256166", "title": "", "text": "Zyprexa will mean to a patient like Donna is that she will have less anxiety, less irritability and be able to sleep better. Id. at 7. But, as plaintiffs note, “Donna” is not described as having bipolar disorder and having been so diagnosed; moreover, Zyprexa has not been shown to improve mood, anxiety levels, or disrupted sleep patterns in patients with Donna’s symptoms who do not have bipolar I disorder. When Lilly told doctors that Zyprexa had been shown to help patients “like Donna,” plaintiffs allege that the statement was false and misleading: no data had ever shown any benefit associated with the use of Zyprexa in a patient with Donna’s symptoms. In addition to touting the symptomatic relief provided by Zyprexa regardless of diagnosis, Lilly also, plaintiffs assert, actively promoted off-label sales of Zyprexa for dementia and depression. See Part XVTII.A.5, infra (testimony of Dr. Schneider). The company created a separate 280-person “long-term care” sales force to “drive the nursing home business.” Zyprexa Primary Care Presentation 14, Mike Bandick, Zyprexa Brand Manager, Eli Lilly National Sales Meeting, March 13, 2001. At least some Lilly officials referred to nursing homes and assisted living facilities as an “opportunistic” market. Email from Deniee Torres, Eli Lilly & Co., to Peter D. Feldman, Eli Lilly & Co., July 15, 2002, at 5:53 p.m. Lilly’s “Strategy # 1” was to “establish Zyprexa as a first line choice in the treatment of the elderly patient who are [sic] experiencing behavior or cognitive symptoms.” Zyprexa PCP Opportunity 3, Eli Lilly & Co. (undated). Certain marketing materials for dementia patients, plaintiffs point out, state that Zyprexa provided “[s]afety in agitation associated with dementia in a clinical trial” and that it was the “[f]irst and only psychotropic indicated for the treatment of agitation associated with dementia.” Zyprexa has never been approved for the treat ment of dementia. Another Lilly brochure from 1999, entitled “Programs Emphasizing Zyprexa’s Efficacy for Depressive Symptoms,” stated that Zyprexa “improves depressive symptoms.” Representatives of Lilly were also instructed to inform doctors that Zyprexa may help patients with “symptoms of social withdrawal, apathy and flat" }, { "docid": "15012319", "title": "", "text": "of Zyprexa and that of its three main competitors increased from $77 per prescription in 1996 to $113 in 2003 and $150 in 2006. D. Marketing and Off-Label Prescriptions In late 2000, Lilly began marketing Zyprexa to primary-care physicians. This shift was important because previously Zyprexa had been targeted to — and was almost exclusively prescribed by — psychiatrists, who treat patients with severe mental disorders such as schizophrenia and bipolar disorder, the two indications for which Zyprexa was approved. Primary-care physicians, by contrast, treat patients for more common, and often less severe, disorders such as anxiety, depression, and dementia. Although the FDA approves drugs for treatment of specific diseases, physicians may legally prescribe drugs, in their clinical judgment and discretion, for treatment of other diseases or disorders. This practice is known as “off-label” use. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 350, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001). While off-label prescriptions are permitted within a physician’s discretion, drug manufacturers are prohibited from promoting off-label uses in marketing a drug. Plaintiffs argue that Lilly shifted its marketing efforts to primary-care physicians with the intention of marketing off-label prescriptions of Zyprexa for such conditions as anxiety, depression, and dementia. Lilly’s marketing campaign targeting primary-care physicians was known as “Viva Zyprexa.” Lilly internally announced “Viva Zyprexa” in March 2001. The campaign focused on prescribing Zyprexa to treat isolated symptoms not tied to a clinical diagnosis, rather than treatment of the specific conditions — bipolar disorder and schizophrenia — for which Zyprexa had been approved by the FDA. For example, Lilly created profiles of hypothetical patients as examples of patients who could be treated with Zyprexa. One such hypothetical patient was Donna, “a single mom in her mid-30s appearing in your office in drab clothing and seeming somewhat ill at ease. Her chief complaint is that she feels anxious and irritable.” Lilly suggested that sales representatives say that “when we look at efficacy in a patient like Donna, Zyprexa has been shown to improve mood, anxiety levels, and disrupted sleep patterns.... [W]hat Zyprexa will mean to a patient like" }, { "docid": "8256159", "title": "", "text": "that random glucose levels were the same for patients taking olanzapine and patients taking a placebo. On October 11, 2000, Dr. Russell Katz of the FDA wrote to Gregory T. Brophy of Eli Lilly expressing his opinion that the proposed label change was misleading: The descriptive data that is provided expresses a certain level of implied safety with respect to treatment emergent hyperglycemia. This reassuring language is not appropriate for submission under 21 CFR 314.70(c) as a ‘Special Supplement— Changes Being Effected’ (CBE). A more complete submission of glucose data, and additional discussion of pooling and analysis of this data is necessary before an appropriate review of treatment emergent hyperglycemia and diabetes can take place. Letter from Dr. Russell Katz, FDA, to Gregory T. Brophy, Eli Lilly & Co. (Oct. 11, 2000). To Dr. Katz and the FDA, olanzapine was not as safe as Lilly made it out to be. Because there was not enough data to support Lilly’s proposed revision to the label, the FDA would not permit Lilly to use the label as a marketing device to infer “a certain level of implied safety” that was not proven to exist. G. Malaysian “Dear Doctor” Letter During this same time period, other countries requested or required Lilly to make changes to the Zyprexa label. In November 2000, at the request of the Malaysian Regulatory Authority, Lilly sent a “Dear Doctor” letter to Malaysian physicians advising them of a change in Zyprexa’s package insert and an increased risk of hyperglycemia and/or diabetes as it relates to Zyprexa use. The “Dear Doctor” letter also advised Malaysian physicians to monitor patients with risk factors for the development of diabetes. Letter from John See, Regulatory and Scientific Affairs Manager, Eli Lilly & Co., to Doctor, Malaysian Regulatory Authority (Nov.2000). IX. Events of2001 A. Off-Label Marketing Campaign to Primary Care Doctors As an antipsychotic drug, Zyprexa has been and is most commonly prescribed by psychiatrists and other mental health specialists who treat patients with relatively rare schizophrenia and bipolar disorders, diseases traditionally beyond the ken of the average family doctor. Primary care physicians (“PCPs”)," }, { "docid": "8256163", "title": "", "text": "to think differently about both their patients and Zyprexa. Rather than advertising its use for specific disorders, Lilly marketed Zyprexa for symptoms commonly encountered by PCPs, encouraging doctors to treat patients without making a diagnosis at all: One-third of all patients, all psychiatric patients, do not fit into a DSM category. They have ooms, they just don’t neatly fit into a category. But yet you got to treat anxiety, agitation, depression where it exists. Pfs.’ Fact Proffer at II.C.2.C. (While the symptoms of dementia and depression overlap to some extent with those of schizophrenia and bipolar mania, these are different and distinguishable diagnoses.) Although the FDA had never approved Zyprexa as a “solution [for] mood, thought and behavioral disorders,” it was Lilly’s plan to do just that—to “redefine” the way PCPs treated those diseases. Marketing Zyprexa as a “mood stabilizer,” Lilly asserted that “Zyprexa safely stabilizes behavioral symptoms.” The company told its sales force: The [primary care] doctor is thinking that he does not see schizophrenic or bipolar patients, but he probably does see patients with symptoms of behavior, mood or thought disturbances. Need to focus on symptoms and patient types ... Even if the doctor does not have diagnosis, he should treat anyway.” Pfs.’ Fact Proffer 11607. Based on the market research it had commissioned and the greater incidence of the disease, Lilly viewed bipolar disorder as a more important market segment than schizophrenia. By marketing to symptoms, Lilly believed it could essentially “create” a “bipolar market.” Lilly’s “Mood Disorder Questionnaire” (“MDQ”) handout, distributed to primary care physicians, contained a series of questions Lilly sales representatives indicated were to help “diagnose” the patient. Formally a “self-administered screening tool,” the MDQ instructed physicians they “have a positive screen [for patients who would benefit from use of Zyprexa] if the patient answers ... ‘Yes’ to seven or more of the 13 items in question 1 AND ... ‘Yes’ to question 2.” Yet the MDQ was not designed to function as a diagnostic tool. To better focus its marketing towards symptoms rather than diseases, Lilly also created hypothetical patient profiles, with names" }, { "docid": "15012318", "title": "", "text": "causing symptoms such as muscle tremors, slurred speech, and other movement disorders. When Lilly considered what initial price to set for Zyprexa, it weighed Zyprexa’s efficacy and side effects against those of Clozaril and Risperdal and set Zyprexa at a higher price. One doctor who discussed the launch price with Lilly before Zyprexa was put on the market recalled a Lilly senior employee explaining the higher price as “premium drug, premium price,” meaning that Zyprexa’s high price was justified by its assertedly superi- or performance as compared to the other antipsychotic drugs then on the market. Lilly set Zyprexa’s initial prescription price $77 higher than the cost of either Clozaril or Risperdal. After Zyprexa’s launch, its per-prescription price was increased regularly, which was consistent with internal Lilly policies. Zyprexa’s price increased from approximately $188 per prescription in 1996 to $292 in 2003 and $368 in 2006. Other SGAs did not increase their price at a similar rate — by the calculations of one expert witness presented to the district court, the difference between the cost of Zyprexa and that of its three main competitors increased from $77 per prescription in 1996 to $113 in 2003 and $150 in 2006. D. Marketing and Off-Label Prescriptions In late 2000, Lilly began marketing Zyprexa to primary-care physicians. This shift was important because previously Zyprexa had been targeted to — and was almost exclusively prescribed by — psychiatrists, who treat patients with severe mental disorders such as schizophrenia and bipolar disorder, the two indications for which Zyprexa was approved. Primary-care physicians, by contrast, treat patients for more common, and often less severe, disorders such as anxiety, depression, and dementia. Although the FDA approves drugs for treatment of specific diseases, physicians may legally prescribe drugs, in their clinical judgment and discretion, for treatment of other diseases or disorders. This practice is known as “off-label” use. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 350, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001). While off-label prescriptions are permitted within a physician’s discretion, drug manufacturers are prohibited from promoting off-label uses in marketing a drug. Plaintiffs" }, { "docid": "8256160", "title": "", "text": "a marketing device to infer “a certain level of implied safety” that was not proven to exist. G. Malaysian “Dear Doctor” Letter During this same time period, other countries requested or required Lilly to make changes to the Zyprexa label. In November 2000, at the request of the Malaysian Regulatory Authority, Lilly sent a “Dear Doctor” letter to Malaysian physicians advising them of a change in Zyprexa’s package insert and an increased risk of hyperglycemia and/or diabetes as it relates to Zyprexa use. The “Dear Doctor” letter also advised Malaysian physicians to monitor patients with risk factors for the development of diabetes. Letter from John See, Regulatory and Scientific Affairs Manager, Eli Lilly & Co., to Doctor, Malaysian Regulatory Authority (Nov.2000). IX. Events of2001 A. Off-Label Marketing Campaign to Primary Care Doctors As an antipsychotic drug, Zyprexa has been and is most commonly prescribed by psychiatrists and other mental health specialists who treat patients with relatively rare schizophrenia and bipolar disorders, diseases traditionally beyond the ken of the average family doctor. Primary care physicians (“PCPs”), in contrast, do treat patients diagnosed with anxiety, depression, irritability, dementia, and Alzheimer’s disease-all off-label uses vis a vis Zyprexa. In order to expand the potential number of Zyprexa preseribers and patients and thus increase sales, Lilly began directing its marketing efforts towards PCPs in late 2000. Plaintiffs allege that the campaign was intended to, and did, largely (and illegally) promote off-label use by PCPs. As recounted in one of this court’s previous Zyprexa opinions, this strategy was outlined by the company as follows: Following several months of study by the LillyUSA Zyprexa Brand Team, the affiliate approved the recommendation that Lilly actively promote Zyprexa to selected current primary care prescriber targets ____We believe there to be significant unmet medical need among office-based primary care physicians____ Zyprexa’s profile is ideal for primary care (safe, simple, well-tolerated, effective, versatile). Zyprexa would enjoy first mover advantage in this segment.... Challenges: Most PCPs currently prescribe a low volume of antipsychotics and mood stabilizers. Many PCPs will refer patients in need to psychotropic treatment to a specialist rather than" }, { "docid": "8256267", "title": "", "text": "not received FDA approval and for which the efficacy and side effects had not been established through adequate clinical evidence.” (e) The specific tactics Lilly used in its campaign to promote Zyprexa included supporting the production of articles favorable to Zyprexa, disseminating biased information through continuing medical education programs, and paying physician thought leaders to represent Zyprexa favorably to their colleagues. In addition, given the central role Medicaid financing plays in the reimbursement of antipsyehotics, Lilly manipulated and paid state agencies to promote the use of Zyprexa in the Medicaid population. (f) Lilly’s efforts to misrepresent the safety and efficacy of Zyprexa thus were delivered not only through traditional pharmaceutical promotional strategies such as detailing and sampling, but also through channels that have the appear anee of independence and legitimacy, including scientific journals, continuing medical education programs, and state agencies. All of these efforts reinforced Lilly’s strategy of positioning Zyprexa to appear higher-value to physicians, patients, and payers than Lilly knew the drug to be. (g) In addition to overstating Zyprexa’s value for approved indications, Lilly sought to expand Zyprexa’s use in patients with symptoms and conditions that were completely unrelated to schizophrenia (and, later, to bipolar mania, for which Zyprexa was approved). For many of these off-label indications, Lilly’s efforts involved promoting Zyprexa to primary care physicians, who are generally less familiar with antipsychotic medications. (h) Lilly “sought to position Zyprexa as a ‘foundational mood stabilizer’ by focusing on ‘behavior treatment’ and ‘reducing symptoms associated with mood, thought, and behavioral disturbances.’ ” Sales of Zyprexa associated with treatment of depression, for which it has never been approved, are estimated to have reached nearly $3 billion from 1999 to 2005. In addition, Lilly promoted the utilization of Zyprexa in the elderly for symptoms of dementia, a use for which a black box warning was ultimately added to Zyprexa’s label due to an increased mortality risk. Finally, Lilly promoted the use of Zyprexa in children for a wide range of indications including Tourettes Syndrome, poor impulse control, bipolar disorder and stuttering. (i) In summary, Lilly failed to adequately warn about Zyprexa’s" }, { "docid": "8256332", "title": "", "text": "lack of studied expertise, leading PCPs to prescribe Zyprexa to patients for whom the antipsychotic was not appropriate. Id. at 7. In Dr. Klotz’s opinion, Lilly’s PCP marketing campaign was designed to encourage primary care physicians to overdiagnose bipolar disease and to prescribe Zyprexa for symptoms—not FDA-indicated diagnoses—while minimizing Zyprexa’s severe side effects. Id. at 8. As examples, Dr. Klotz points to Lilly’s Mood Disorder Questionnaire (“MDQ”), a screening instrument offered to PCPs, and to sales representatives’ use of the “Donna” patient profile when detailing PCPs. Id. at 7; see Eli Lilly & Co., Mood Disorder Questionnaire. a. Lilly’s Mood Disorder Questionnaire (“MDQ”) To encourage prescriptions of Zyprexa, Lilly distributed the MDQ, originally designed by Dr. R. Hirschfeld, to primary care physicians. The hand-out contained a series of questions Lilly indicated were to help diagnose the person filling out the questionnaire. Eli Lilly & Co., Mood Disorder Questionnaire. The MDQ instructed physicians they “have a positive screen if the patient answers ... “Yes’ to seven or more of the 13 items in question 1 AND ... Yes’ to question 2.” Id. at 2. In Dr. Klotz’s view, Lilly’s promotion of the MDQ as Zyprexa prescription aid was misleading: “Screening instruments are not diagnostic instruments. They suggest that a patient in a selection group should receive further evaluation or referral to a specialist if the diagnosis is outside the realm of expertise of the clinician. Screening instruments in no way suggest treatment.” Klotz Decl. 11. The MDQ “does not discriminate between subtypes of bipolar disorder” and “is insufficient to differentially diagnose active bipolar mania from phenotypically similar illnesses.” Id. at 10-12. Although Zyprexa is only FDA-approved for certain types of bipolar disorder, the MDQ implies that Zyprexa is appropriate for all bipolar types. Assuming Lilly’s marketing materials promoted the message that if you have the disease, you need the medicine, that would be “unsupported in the literature and medically inappropriate.” Id. at 12. Dr. Klotz went as far as calling use of the MDQ “dangerous.” See id. These limitations on the sensitivity and applicability of the MDQ did not stop Lilly" }, { "docid": "8256313", "title": "", "text": "a difficult and challenging clinical problem for which there are no satisfactory pharmacological or non-pharmacological approaches that work for most people so afflicted.” Id. at 8. Doctors use multiple medications to try to treat symptoms, including FGAs, SGAs, anti-anxiety, and anti-eonvulsants. Id. at 8. As Dr. Schneider noted, [That] so many medications have been used for this purpose demonstrates that there are no clearly good or universal choices. So does the fact that when these medications are used in attempts to treat behavioral signs and symptoms of dementia, they are being prescribed by physicians for “off-label” indications. If any of these medications could be shown to be safe and effective for this population of patients in adequate and well-controlled studies, then that medication’s prescribing label most likely would contain that indication. Id. at 8. Zyprexa’s label currently carries a black box warning that it “is not approved for treatment of patients with dementia-related psychosis.” This is not for lack of trying; pharmaceutical companies, Lilly included, have sponsored trials intended to provide efficacy evidence for the FDA, but most results were not statistically significant. Id. at 11. By 2000, Risperdal and Zyprexa became the dominant antipsychotics prescribed to nursing home patients, displacing FGAs, despite the limited efficacy. Schneider Deck 12 (from July 1994 to March 2001, FGA market share dropped from 92% to 21%; in March 2001, SGAs had 79% market share). “The vast majority of nursing home residents prescribed these drugs did not have schizophrenia or bipolar disorder,” and the vast majority—90%—of prescribing doctors were not psychiatrists, but generalists. Id. at 12-13. b. Lilly’s Misleading Marketing to Alzheimer’s Patients Dr. Schneider testified that “Lilly promoted misleading evidence of Zyprexa’s efficacy and safety for treating behavioral signs and symptoms of Alzheimer’s Disease by delaying or failing to publish results of clinical trials and through the Martha patient profile.” Evid. Hr’g Tr. 484, 491; Schneider Deck 15 ff.; see also Evid. Hr’g Tr. 493, 494, 495, 499, 505. His opinions support Dr. Abramson’s testimony; Dr. Abramson analyzed Lilly’s internal marketing documents on geriatric use as supporting Dr. Schneider’s conclusion about a program" }, { "docid": "8256168", "title": "", "text": "affect.” Training materials directed the sales force to tell doctors that “[psychiatrists refer to these as ‘negative symptoms,’ ” but a “patient’s family may say it more simply: ‘She’s not herself anymore.’ ” Compared to the hypothetical patient profile “Donna,” the elderly patient “Martha” was designed to “reinforce Zyprexa as a nursing home drug.” Zyprexa Primary Care Presentation 14; see Part XVIII.A.5.b.ii, infra. Like Donna, Martha had no diagnosis, but only symptoms of agitation, restlessness, and paranoia. Yet according to plaintiffs, not only was there a lack of evidence that Zyprexa was beneficial for patients like “Martha” with dementia, Lilly actually had evidence to the contrary: the company’s study results had shown “that olanzapine actually statistically significantly worsened cognitive function in patients with Alzheimer’s disease compared to placebo patients.” Schneider Decl. 17 (citing the 1999-2001 HGIC trial). Lilly’s marketing efforts succeeded in greatly increasing the number of off-label sales of the drug; without off-label marketing, Zyprexa—originally approved for the treatment of conditions affecting less than one percent of the population—could not have become the seventh best-selling drug in the world. In 2003, Zyprexa sales by diagnosis broke down into nursing home 9%, schizophrenia 26%, bipolar 28% and other 40%. Brand Council III at 16, Eli Lilly & Co. Within the bipolar segment, Lilly differentiated between bipolar mania, depression and maintenance. In 2002, Lilly sales figures for bipolar mania totaled $200 million, for bipolar depression $136 million, and for bipolar maintenance, $225 million. Yet use of Zyprexa for bipolar depression alone has never been approved; bipolar maintenance became an approved indication only in 2004. Thus, in 2002, almost two-thirds of Lilly’s revenue in the bipolar market came from off-label use. Lilly estimated its revenues from the same segments for 2003 and 2004, and the pereentages held constant. Pfs.’ Fact Proffer ¶ 720. B. Japan Launch In preparation for Zyprexa’s launch in Japan in or about June 2001, Lilly attempted to persuade Japan’s Ministry of Health and Welfare (“MHW”) that the Zyprexa package insert did not need to include a requirement that blood glucose monitoring be conducted in certain patients due to" }, { "docid": "8256161", "title": "", "text": "in contrast, do treat patients diagnosed with anxiety, depression, irritability, dementia, and Alzheimer’s disease-all off-label uses vis a vis Zyprexa. In order to expand the potential number of Zyprexa preseribers and patients and thus increase sales, Lilly began directing its marketing efforts towards PCPs in late 2000. Plaintiffs allege that the campaign was intended to, and did, largely (and illegally) promote off-label use by PCPs. As recounted in one of this court’s previous Zyprexa opinions, this strategy was outlined by the company as follows: Following several months of study by the LillyUSA Zyprexa Brand Team, the affiliate approved the recommendation that Lilly actively promote Zyprexa to selected current primary care prescriber targets ____We believe there to be significant unmet medical need among office-based primary care physicians____ Zyprexa’s profile is ideal for primary care (safe, simple, well-tolerated, effective, versatile). Zyprexa would enjoy first mover advantage in this segment.... Challenges: Most PCPs currently prescribe a low volume of antipsychotics and mood stabilizers. Many PCPs will refer patients in need to psychotropic treatment to a specialist rather than treat the patient. Key barriers to uptake include PCP’s lack of training in this category, limited time with patients, and an aversion to perceived risk. Zyprexa’s primary indications—schizophrenia and bipolar—are not viewed as PCP-treated conditions, so there’s not a specific indication for Lilly reps to promote in the PCP segment Position: Zyprexa: The safe, proven solution in mood, thought, and behavioral disorders. We will emphasize safety to address barriers to adoption____ The word ‘solution’ speaks to unmet medical need, and enables the PCP to take control of clinical situations that previously had led to referrals and/or poor outcomes. ‘Mental disorders’ is intentionally broad and vague, providing latitude to frame the discussion around symptoms and behaviors rather than specific indications. In re Zyprexa Prods. Liab. Litig., 489 F.Supp.2d 230, 251 (E.D.N.Y.2007). The resulting PCP-direeted marketing campaign, titled “Viva Zyprexa,” was announced at a national sales meeting in March 2001. Evid. Hr’g Tr. 754 (Abramson). Prior to this time, Zyprexa had been prescribed almost exclusively by psychiatrists. An essential part of Lilly’s marketing plan was encouraging PCPs" }, { "docid": "8256331", "title": "", "text": "Steven Klotz, M.D. Dr. Klotz is a private practice psychiatrist, board-certified in Psychiatry, whose practice focuses on adult, child, and adolescent psychiatry. See Deck of Steven Klotz, M.D. 4, Feb. 22, 2007, Docket Entry No. 99 (“Klotz Deck”). Lilly’s Daubert motion to exclude Dr. Klotz as an expert was denied. See In re Zyprexa Prods. Liab. Litig., 493 F.Supp.2d 571, 580 (E.D.N.Y.2007). Dr. Klotz reviewed the marketing materials and “diagnostic” instruments distributed by Lilly sales representatives to primary care doctors (“PCPs”). He then analyzed whether those materials conformed to and were appropriate diagnostic tools for Zyprexa’s FDA-approved indications and found them misleading. See Klotz Decl. at 2. Lilly marketed Zyprexa to PCPs as well as to psychiatrists to reach a greater number of potential prescription writers. Id. at 5. Many people, in fact, are given antipsychotic medications without a psychiatric examination. The accuracy of mental health diagnoses made by primary care doctors without the specialized training and experience of psychiatrists, however, often is questionable, as Dr. Klotz noted. Lilly’s marketing documents took advantage of this lack of studied expertise, leading PCPs to prescribe Zyprexa to patients for whom the antipsychotic was not appropriate. Id. at 7. In Dr. Klotz’s opinion, Lilly’s PCP marketing campaign was designed to encourage primary care physicians to overdiagnose bipolar disease and to prescribe Zyprexa for symptoms—not FDA-indicated diagnoses—while minimizing Zyprexa’s severe side effects. Id. at 8. As examples, Dr. Klotz points to Lilly’s Mood Disorder Questionnaire (“MDQ”), a screening instrument offered to PCPs, and to sales representatives’ use of the “Donna” patient profile when detailing PCPs. Id. at 7; see Eli Lilly & Co., Mood Disorder Questionnaire. a. Lilly’s Mood Disorder Questionnaire (“MDQ”) To encourage prescriptions of Zyprexa, Lilly distributed the MDQ, originally designed by Dr. R. Hirschfeld, to primary care physicians. The hand-out contained a series of questions Lilly indicated were to help diagnose the person filling out the questionnaire. Eli Lilly & Co., Mood Disorder Questionnaire. The MDQ instructed physicians they “have a positive screen if the patient answers ... “Yes’ to seven or more of the 13 items in question 1 AND" } ]

[ { "docid": "17479689", "title": "", "text": "corporate structure. See id. A corporation such as THORN Americas or TEMINAH may serve as a “person” for purposes of RICO § 1962(c). See 18 U.S.C. § 1961(3) (1994) (defining “person” as including “any individual or entity capable of holding a legal or beneficial interest in property”); see also Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 995 (8th Cir.1989) (involving a RICO enterprise allegedly conducted by two corporate persons). An association of business entities such as RAC also may serve as an “enterprise.” See United Healthcare, 88 F.3d at 570; Atlas Pile Driving, 886 F.2d at 995 n. 7. In this case, however, the plaintiffs allege that the RICO enterprise consists solely of wholly owned, related business entities, and that some of the wholly owned subsidiaries conducted the racketeering activities for the enterprise. This Court has not previously considered whether the § 1962(c) distinctiveness requirement may be satisfied when wholly owned subsidiaries are the persons who conduct a RICO enterprise consisting only of the parent company and other related business entities that comprise the defendants’ corporate family. When we look to the other circuits, we find little direct guidance, but we do find substantial indications that to impose liability on a subsidiary for conducting an enterprise comprised solely of the parent of the subsidiary and related businesses would be to misread the statute. Ten other circuits require that the person and enterprise be distinct. Most of these circuits have suggested some limits on when related business entities, or business entities and their employees, may serve as both the person and enterprise under § 1962(c). See, e.g., Bachman v. Bear, Stearns & Co., 178 F.3d 930, 932 (7th Cir.1999); Brannon v. Boatmen’s First National Bank, 153 F.3d 1144, 1146-47 (10th Cir.1998);Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995); Davis v. Mutual Life Ins. Co., 6 F.3d 367, 377 (6th Cir.1993), cert. denied, 510 U.S. 1193, 114 S.Ct. 1298, 127 L.Ed.2d 650 (1994); NCNB Nat’l Bank v. Tiller, 814 F.2d 931, 936 (4th Cir.1987), overruled on other grounds by" } ]

[ { "docid": "10007889", "title": "", "text": "the distinctiveness necessary for a § 1962(c) claim is lacking “when a corporation and its wholly owned subsidiary are involved” because then, “a ‘person’ is not distinct from an ‘enterprise.’ ” NCNB Nat’l Bank of N.C. v. Tiller, 814 F.2d 931 (4th Cir. 1987); see also United States v. Crysopt Corp., 781 F.Supp. 375, 381 (D.Md.1991) (“Fourth Circuit precedent is clear that RICO defendants must be legally distinct from the enterprise through which they allegedly conduct racketeering activities.”). Although not adopting a per se rule, other courts have held that a parent and its wholly owned subsidiary lack the distinctiveness necessary to be a “person” and an “enterprise,” respectively, where there is no assertion that the subsidiary took action independent of its parent. See, e.g., Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 448-49 (1st Cir.2000). (ii) Association-in-Fact Enterprise With respect to the second category of an association-in-fact, in which the alleged “persons” are also members of the “enterprise,” there is certainly judicial recognition that “a defendant may be both a person and a member of a collective RICO enterprise” without negating the distinctiveness requirement. See, e.g., In re Lu-pron Mktg. & Sales Practices Litig., 295 F.Supp.2d 148, 173 (D.Mass.2003) (citing United States v. Goldin Indus., Inc., 219 F.3d 1271 (11th Cir.2000); Cullen v. Margiotta, 811 F.2d 698 (2d Cir.1987), overruling on other grounds recognized by Cruz v. FXDirectDealer, LLC, 720 F.3d 115 (2d Cir.2013)). As analogized by the Lupron court, “[t]he basic idea is that while one basketball player does not constitute a team, an association of five players does, without each losing his identity as a distinct person.” Id. However, a “singular person or entity [cannot be] both the person and the only entity comprising the [association-in-fact] enterprise.” United States v. Goldin Indus., Inc., 219 F.3d 1271, 1275 (11th Cir.2000). Thus, just as adequate distinctiveness may be missing between a parent-person and a wholly owned subsidiary-enterprise (or vice versa), it may also be lacking where the parent and its wholly owned subsidiaries are both the “alleged persons” and the sole members of the association-infaet enterprise. Cf. In" }, { "docid": "3154541", "title": "", "text": "enterprise, although legally separate, “operated within a unified corporate structure” and were “guided by a single corporate consciousness”), cert. denied, -U.S. -, 118 S.Ct. 49, - L.Ed.2d - (1997); Compag-nie De Reassurance D'Ile de France v. New England Reins. Corp., 57 F.3d 56 (1st Cir.1995); Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.1993) (“A RICO claim under § 1962(c) is not stated where the subsidiary merely acts on behalf of, or to the benefit of, its parent.”); Chamberlain Mfg. Corp. v. Maremont Corp., 919 F.Supp. 1150, 1154-58 (N.D.Ill.1996) (holding that where enterprise was an association-in-fact of the parent corporation and its subsidiary, it lacked its own distinct legal identity for purposes of § 1962(c)). In this ease, Khurana did not plead any distinct roles for the subsidiary River Region and the parent corporation Innovative so that they might be regarded as having any distinctiveness from the alleged enterprise. “We would not take seriously ... an assertion that a defendant could conspire with his right arm, which held, aimed and fired the fatal weapon.” United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982). As the assoeiation-in-faet pleaded by Khurana is in reality the corporate entity, we must affirm the district court as to its dismissal of these claims against the corporate entities as the distinctiveness requirement is not met in relation to these two defendants. River Region and Innovative cannot simultaneously be both the enterprise and the named defendants. See Securitron, 65 F.3d at 263. Therefore, we conclude that Khurana’s attempt to circumvent the distinction requirement in regard to the corporate defendants by pleading an association-in-fact theory must be rejected. We must also consider the claims in relation to the other named defendants, the officers and employees of the two corporate entities. See, e.g., Banks v. Wolk, 918 F.2d 418, 424 (3d Cir.1990) (leaving RICO action intact against certain individual defendants while dismissing the corporate defendant for failure to withstand distinctiveness requirement); Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.1991) (considering § 1962(c) claim separately for each defendant’s fulfillment of distinctiveness and" }, { "docid": "11790853", "title": "", "text": "Defendants, Plaintiffs here have identified the individuals that make up the enterprise. They include: (1) Countrywide, including its LandSafe loan closing services subsidiaries, and (2) Mid Atlantic Capital, One Source Mortgage, and other mortgage brokers not named as defendants herein who have contracts with Countrywide pursuant to which they sell, arrange, promote, or otherwise assist Countrywide in directing borrowers into loans issued by Countrywide. (CAC at 51.) This is more specific than simply identifying “unnamed car dealers,” see Richmond v. Nationwide Cassel, L.P., 52 F.3d 640, 645 (7th Cir.1995), or “secondary lenders.” See VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 700 (6th Cir.2000). Thus, Plaintiffs’ allegations about the Broker Enterprise are sufficient. ii. The Countrywide Enterprise In addition to alleging the existence of the Broker Enterprise, Plaintiffs allege the existence of an alternative Countrywide Enterprise. They allege, based on their current knowledge, “the following persons constitute a group of individuals associated in fact that will be referred to herein as the ‘Countrywide Enterprise’: (1) Countrywide and (2) Countrywide’s subsidiaries, including its LandSafe loan closing services subsidiaries.” (CAC at 52.) Defendants assert these allegations are insufficient because a parent corporation and its subsidiaries cannot legally constitute a RICO enterprise. Plaintiffs disagree. Relying on the text of § 1962(c), courts have consistently held that “the ‘person’ must be a separate and distinct entity from the ‘enterprise.’ ” Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1396 (9th Cir.1986). Although the Ninth Circuit has not decided whether a parent and its subsidiary satisfies this distinctiveness requirement, other circuits have decided that these entities generally are not sufficiently distinct. See Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 934 (7th Cir.2003); Bessette v. Avco Financial Services, Inc., 230 F.3d 439, 449 (1st Cir.2000); Fogie v. THORN Americas, Inc., 190 F.3d 889, 898 (8th Cir.1999); Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.1993). These courts recognize that the parent and its subsidiary are separate legal entities. However, they also acknowledge that “a subsidiary that simply conducts its affairs as delegated by the parent company for the" }, { "docid": "7260030", "title": "", "text": "F.2d 931, 936 (4th Cir.1987) (bank could not be held liable under either § 1962(a) or (c) where its holding company and sole shareholder were alleged to be the enterprise); Emery v. Amer. Gen. Fin., Inc., 134 F.3d 1321, 1324 (7th Cir.1998) (holding that there can be no § 1962(c) claim against a subsidiary when the parent can exercise power over the subsidiary that is inherent in its ownership of wholly owned subsidiaries), cert. denied, — U.S. —, 119 S.Ct. 57, 142 L.Ed.2d 44 (1998). This rule of distinctiveness has led to two separate requirements when a § 1962(c) violation under RICO is alleged. First, because the “enterprise” can not be hable under this subsection, the defendant can not also be the alleged “enterprise” named in the complaint. The reason for this is obvious — “the unlawful enterprise itself cannot also be the person the plaintiff charges with conducting it.” Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996) (quoting Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913 F.2d 5, 6 (1st Cir.1990)). Second, when analyzing whether the distinctiveness requirement is satisfied when the named “person” under § 1962(c) is a subsidiary of the alleged “enterprise,” the named “enterprise” must be sufficiently distinct from the named “person,” i.e. defendant, so that the two are not in reality the same entity. Otherwise, if the two entities are in fact the same then the re quirement that the named “enterprise” be insulated from liability under § 1962(c) is unmet. One First Circuit panel has stated that if the “enterprise” benefits from the person’s unlawful activities then neither is distinct for § 1962(c) purposes. See Schofield v. First Commodity Corp. of Boston, 793 F.2d 28, 31 (1st Cir.1986); see also Deane v. Weyerhaeuser Mortgage Co., 967 F.Supp. 30, 34-35 (D.Mass.1997). Furthermore, the First Circuit has also held that the § 1962(c) claim ought to be dismissed when it appears that the subsidiary did not take any actions independent from its parent. See Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 91 (1st Cir.1995), cert. denied, 516 U.S." }, { "docid": "17449669", "title": "", "text": "Cir. 1986), and with specific reference to punitive damages Budget Cinema, Inc. v. Watertower Associates, 81 F.3d 729, 733 (7th Cir.1996); Hays v. Sony Corp. of America, 847 F.2d 412, 415 (7th Cir.1988); On Davis v. The Gap, Inc., 246 F.3d 152, 172 (2d Cir.2001); Nimmer & Nimmer, supra, vol. 4, § 14.02[B], p. 14-28. The RICO claim is another loser. RICO provides a remedy against conducting the activities of an enterprise through a pattern of racketeering activity, and the definition of racketeering includes criminal copyright infringement. But apart from whether Bucklew could show that HAB has engaged in a pattern of such crimes, the RICO claim fails because the enterprise alleged to have been conducted through a pattern of racketeering activity (defendant HAB, Inc.) is a wholly owned subsidiary of the alleged racketeer (the other defendant, Hawkins, Ash, Baptie & Co.). The claim is that the parent stole the software and gave it to the subsidiary to market. A parent and its wholly owned subsidiaries no more have sufficient distinctness to trigger RICO liability than to trigger liability for conspiring in violation of the Sherman Act, see Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 777, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), unless the enterprise’s decision to operate through subsidiaries rather than divisions somehow facilitated its unlawful activity, which has not been shown here. Bachman v. Bear, Steams & Co., 178 F.3d 930, 932 (7th Cir.1999); Emery v. American General Finance, Inc., 134 F.3d 1321, 1324 (7th Cir.1998); Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226-28 (7th Cir.1997); Bessette v. Avco Financial Services, Inc., 230 F.3d 439, 448-49 (1st Cir.2000); Brannon v. Boatmen’s First National Bank of Oklahoma, 153 F.3d 1144, 1147-49 (10th Cir.1998). To summarize, the judgment on liability is affirmed in part and reversed in part, and the case is remanded for a redetermi-nation of the damages to which the plaintiff is entitled. Affirmed in Part, Reversed IN Part, and Remanded." }, { "docid": "6835127", "title": "", "text": "number of courts have held that in cases involving no more than a parent corporation and its wholly owned subsidiary, such entities cannot together or alone form a RICO enterprise for § 1962(c) purposes when one or both are also the defendant “person” because a parent corporation and a wholly owned subsidiary are, from an economic perspective, one and the same. See, e.g., Glessner v. Kenny, 952 F.2d 702, 710 (3rd Cir.1991); Odishelidze v. Aetna Life & Casualty, 853 F.2d 21, 23-24 (1st Cir.1988); NCNB Nat’l Bank of North Carolina v. Tiller, 814 F.2d 931, 936 (4th Cir.1987), overruled on other grounds, Busby v. Crown Supply, 896 F.2d 833 (4th Cir.1990) (distinguishing between § 1962(a) and (c)). The Supreme Court recognized in the context of Section 1 of the Sherman Act that a wholly owned subsidiary is not different from its parent in any meaningful economic sense: A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 2741-42, 81 L.Ed.2d 628 (1984) (holding that a parent and wholly owned subsidiary cannot conspire under Section 1 of the Sherman Act). The plaintiffs, however, rely upon Haroco, Inc. v. Am. Nat’l Bank & Trust, 747 F.2d 384, 402 (7th Cir.1984), aff'd on other grounds, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). In Haroco, the Seventh Circuit summarily concluded that “a subsidiary corporation is certainly a legal entity distinct from its parent,” and, thus, “since the defendants do not challenge this point,” a complaint which alleged that the wholly owned subsidiary was the person and the parent the enterprise was sufficient under § 1962(c). Haroco, 747 F.2d at 402. I do not find the reasoning of the Seventh Circuit persuasive. First, the issue the court decided was not contested by the defendants; thus," }, { "docid": "10007888", "title": "", "text": "in Cedric Kushner Promotions, the Supreme Court addressed an alleged § 1962(c) claim in which the liable “person” was the individual sole owner/employee of a corporation and the “enterprise” was the corporation. See 533 U.S. at 160, 121 S.Ct. 2087. Where the owner, or RICO “person,” allegedly was conducting the enterprise’s corporate affairs in a RICO-forbidden way, the Supreme Court held that there was sufficient distinction. See id. at 163, 166, 121 S.Ct. 2087. The Supreme Court noted that in such a situation, “[t]he corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. And we can find nothing in the statute that requires more ‘separateness’ than that.” Id. at 163, 121 S.Ct. 2087. However, the Supreme Court explicitly distinguished the case before it from instances in which the “corporation [i]s the ‘person’ and the corporation, together with its employees and agents, [is] the ‘enterprise.’ ” See id. at 164, 121 S.Ct. 2087. The Fourth Circuit has held that the distinctiveness necessary for a § 1962(c) claim is lacking “when a corporation and its wholly owned subsidiary are involved” because then, “a ‘person’ is not distinct from an ‘enterprise.’ ” NCNB Nat’l Bank of N.C. v. Tiller, 814 F.2d 931 (4th Cir. 1987); see also United States v. Crysopt Corp., 781 F.Supp. 375, 381 (D.Md.1991) (“Fourth Circuit precedent is clear that RICO defendants must be legally distinct from the enterprise through which they allegedly conduct racketeering activities.”). Although not adopting a per se rule, other courts have held that a parent and its wholly owned subsidiary lack the distinctiveness necessary to be a “person” and an “enterprise,” respectively, where there is no assertion that the subsidiary took action independent of its parent. See, e.g., Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 448-49 (1st Cir.2000). (ii) Association-in-Fact Enterprise With respect to the second category of an association-in-fact, in which the alleged “persons” are also members of the “enterprise,” there is certainly judicial recognition that “a defendant may be both a person and a" }, { "docid": "7260034", "title": "", "text": "found that the only case which permitted a RICO claim against a subsidiary where the enterprise was the parent corporation is Haroco, Inc. v. Amer. Nat’l Bank & Trust Co., 747 F.2d 384 (7th Cir.1984), aff'd on other grounds, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). In Haroco, however, criminals took over a corporate subsidiary which then managed to wrest control of the parent corporation and use the parent as an instrument for further criminal activities. The Seventh Circuit has since restricted the holding in Haroco to those facts which hold a “family resemblance to the paradigmatic RICO case in which a criminal obtains control of a legitimate firm and uses the firm as the instrument of his criminality.” Emery, 134 F.3d at 1324; see also Fitzgerald v. Chrysler Corp., 116 F.3d 225 (7th Cir.1997). For the proposition that a subsidiary is not distinct from its parent for RICO purposes defendants cite Discon, Inc. v. NYNEX Corp., 93 F.3d 1055 (2d Cir.1996). The Discon Court correctly observed the inconsistency in a situation where a RICO claim could be permitted against a RICO “person” simply because it was separately incorporated. See id. at 1064. This Court, however, declines to follow the bright line rule that a subsidiary is never distinct from its parent for RICO purposes. The First Circuit has not established a clear test for distinctiveness. In dismissing a § 1962(c) claim for lack of distinctiveness, however, the First Circuit has looked to see if there is evidence that the subsidiary took actions independent of the parent enterprise. See Compagnie De Reassurance, 57 F.3d at 92 (citing Brittingham v. Mobil Corp., 943 F.2d 297, 302-303 (3rd Cir.1991) (noting that § 1962(c) claims may be dismissed when the “person” and “enterprise” are in reality no different from each other because they are part of the same corporate group)). While it is true that in Compag-nie De Reassurance the named “enterprise” was the subsidiary rather than the parent corporation, this Court finds that such a distinction would not further the purpose of the distinctiveness requirement. Therefore, the mere allegation" }, { "docid": "6865934", "title": "", "text": "first place. We will not satisfy this request. IV For the foregoing reasons, the judgment of the district court is AFFIRMED. . The district court dismissed plaintiffs' RICO claims with prejudice. The remaining claims against Bancshares, Boatmen’s and T.B.A. of Oklahoma, Inc., brought pursuant to Oklahoma state law, were dismissed without prejudice. . Plaintiffs named several other enterprises in Counts I and II. They do not appeal the district court's determination with respect to those alleged enterprises. See Appellants’ Br. at 9 n. 2, 10 n. 3. . A number of courts facing similar issues have also rejected this aspect of Haroco. See NCNB Nat’l Bank of North Carolina v. Tiller, 814 F.2d 931, 936 (4th Cir.1987) (holding that, as a matter of law, defendant bank is not distinct from its holding company, the alleged enterprise, for purposes of § 1962(c)), overruled on other grounds by Busby v. Crown Supply, Inc., 896 F.2d 833 (4th Cir.1990); Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 441 (5th Cir.1987) (affirming judgment notwithstanding the verdict because no evidence that defendant bank was distinct from its holding company, the enterprise); Nebraska Sec. Bank v. Dain Bosworth Inc., 838 F.Supp. 1362, 1369 (D.Neb.1993) (rejecting the reasoning in Haroco and holding that neither parent nor its wholly owned subsidiary can constitute a § 1962(c) enterprise if the other is named the defendant person); Tucker Freight Lines, Inc., 789 F.Supp. at 893 (rejecting Haroco and granting motion to dismiss because defendant corporation was not distinct from parent, the alleged enterprise). . Plaintiffs also contend that the result they seek is compelled by the Third Circuit's decision in Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258 (3d Cir.1995). In so doing, they misconstrue that opinion. Jaguar Cars holds only that \"corporate officers/employees ... may properly be held liable as persons managing the affairs of their corporation as an enterprise through a pattern of racketeering activity.\" Id. at 261. We note that this conclusion has long been the rule in this circuit. See Liberty Group, 965 F.2d at 886 (noting that employee of" }, { "docid": "8643369", "title": "", "text": "to do so today. Rather, we will continue to look to the allegations in the complaint to determine whether the parent’s activities are sufficiently distinct from those of the subsidiary at the time that the alleged RICO violations occurred. See id.; see, e.g., Compagnie De Reassurance D’lle De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995) (reviewing evidence that supported finding that parent and subsidiary were not distinct for § 1962(c) purposes). Consequently, we agree with the district court that the assertion that AFS Management is a person distinct from the enterprise is insufficient, and the failure to allege that AFS Management took actions independent of Textron is fatal to the appellant’s claims. See Brannon v. Boatmen’s First Nat’l Bank of Oklahoma, 153 F.3d 1144, 1147-48 (10th Cir.1998); Compagnie, 57 F.3d at 92. In most cases, a subsidiary that is under the complete control of the parent company is nothing more than a division of the one entity. Without further allegations, the mere identification of a subsidiary and a parent in a RICO claim fails the distinctiveness requirement. See, e.g., Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913 F.2d 5, 6 (1st Cir.1990); see also Emery v. American Gen. Fin., Inc., 134 F.3d 1321, 1324-25 (7th Cir.) (explaining that it would be a different situation if criminals took over a subsidiary and wrested control of the parent and used the parent as an instrument for further criminal activities), cert. denied, 525 U.S. 818, 119 S.Ct. 57, 142 L.Ed.2d 44 (1998). This position was advocated by the Seventh Circuit in Emery v. American General Finance, Inc., 134 F.3d 1321, 1324-25 (7th Cir.1998), and concisely expressed by the Tenth Circuit in Brannon v. Boatmen’s First National Bank of Oklahoma, 153 F.3d 1144, 1148 (10th Cir.1998): “[AJt a bare minimum, an allegation of RICO liability under 1962(c) must indicate how the defendant used the alleged enterprise to facilitate the fraudulent conduct.” Otherwise, a subsidiary that simply conducts its affairs as delegated by the parent company for the profit of the parent company is engaged in nothing more than a legitimate" }, { "docid": "7260033", "title": "", "text": "on the financial statements of the holding company Textron. See id., ¶ 17. Count IV alleges that AFS Management is the “person” that conducted the affairs of Textron, the alleged “enterprise,” through a pattern of racketeering activity. Although Textron is not a named defendant, the issue is whether AFS Management is, in reality, the same entity as Textron which would cause violation of the distinctiveness requirement under § 1962(c). If AFS Management conducted its reaffirmation agreement activities as a division of Textron, then most courts would certainly preclude a RICO claim because the person and enterprise would then be the same entity. See Emery, 134 F.3d at 1324 (citing Compagnie De Reassurance, 57 F.3d at 92). In dismissing a RICO claim on similar facts to the present case, the Emery Court noted that precluding a RICO claim where the “person” is a division of the parent “enterprise,” but allowing the claim where the “person” is an incorporated wholly owned subsidiary is a difference unrelated to any goal or policy of RICO. Id. This Court has found that the only case which permitted a RICO claim against a subsidiary where the enterprise was the parent corporation is Haroco, Inc. v. Amer. Nat’l Bank & Trust Co., 747 F.2d 384 (7th Cir.1984), aff'd on other grounds, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). In Haroco, however, criminals took over a corporate subsidiary which then managed to wrest control of the parent corporation and use the parent as an instrument for further criminal activities. The Seventh Circuit has since restricted the holding in Haroco to those facts which hold a “family resemblance to the paradigmatic RICO case in which a criminal obtains control of a legitimate firm and uses the firm as the instrument of his criminality.” Emery, 134 F.3d at 1324; see also Fitzgerald v. Chrysler Corp., 116 F.3d 225 (7th Cir.1997). For the proposition that a subsidiary is not distinct from its parent for RICO purposes defendants cite Discon, Inc. v. NYNEX Corp., 93 F.3d 1055 (2d Cir.1996). The Discon Court correctly observed the inconsistency in a situation" }, { "docid": "6865930", "title": "", "text": "that are also its subsidiaries or affiliates. There is substantial case law supporting this proposition. See, e.g., Emery, 134 F.3d at 1324 (holding that no goal or policy of RICO satisfied by imposing liability on parent when “[t]here is no allegation that by using subsidiaries rather than divisions the [enterprise] somehow made it easier to commit or conceal the fraud”); Khurana v. Innovative Health Care Sys., Inc., 130 F.3d 143, 155 (5th Cir.1997) (affirming dismissal of § 1962(c) claims against hospital and parent corporation on grounds that enterprise pleaded “is in reality a ‘stand-in,’ or another name, for the corporate entity”); Fitzgerald, 116 F.3d at 228 (“[W]here a [corporation] deals with its dealers and other agents in the ordinary way, so that their role in the manufacturer’s illegal acts is entirely incidental, differing not at all from what it would be if these agents were ... employees ..., the [corporation] ... (or any subset of the members of the corporate family) do not constitute an enterprise within the meaning of the statute.”); Discon, 93 F.3d at 1064 (holding that three corporate defendants operating “within a unified corporate structure” and “guided by a single corporate consciousness” could not together constitute'the enterprise); Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995) (affirming dismissal of RICO claim when subsidiary, the alleged enterprise, took no actions independent of its defendant parent); Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.1993) (RICO claim against parent not stated when subsidiary, the alleged enterprise, “merely acts on behalf of, or to the benefit of, its parent”); NCNB Nat’l Bank of North Carolina v. Tiller, 814 F.2d 931, 936 (4th Cir.1987) (“[A] ‘person’, is not distinct from an ‘enterprise’ when a corporation and its wholly owned subsidiary are involved.”), overruled on other grounds by Busby v. Crown Supply, Inc., 896 F.2d 833 (4th Cir.1990). In light of this compelling precedent, we doubt plaintiff has properly, alleged a RICO enterprise distinct from Bancshares. Plaintiffs’ claim fails, however, for a more fundamental reason. As the Supreme Court has stated, “[a] violation" }, { "docid": "9813252", "title": "", "text": "(7th Cir.1998) (stating that to meet the distinct enterprise requirement, “the firm must be shown to use its agents or affiliates in a way that bears at least a family resemblance to the paradigmatic RICO case in which a criminal obtains control of a legitimate (or legitimate-appearing) firm and uses the firm as the instrument of his criminality”). The Seventh Circuit recognized, however, that when an enterprise is used to engage in some criminal activity but, for the most part, conducts normal and lawful business, it is only one step away from the prototypical case. Fitzgerald, 116 F.3d at 227. Presumably, such an enterprise is within the family resemblance test. In Cedric Kushner, which was decided several years after Fitzgerald, the Su preme Court held that an individual and his wholly owned corporation could be sufficiently distinct for RICO purposes. 533 U.S. at 163, 166, 121 S.Ct. 2087. The Court in Cedric Kushner concluded that the corporate owner/employee was distinct from his corporation because the corporation was “a legally different entity with different rights and responsibilities due to its different legal status,” and the Court could “find nothing in the statute that requires more ‘separateness’ than that.” Id. at 163, 121 S.Ct. 2087. The Court observed that, “[a]fter all, incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Id. In Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923 (7th Cir.2003), which was decided subsequent to Cedric Kushner, the Seventh Circuit affirmed judgment in favor of the defendant on a RICO claim involving a parent corporation and its wholly owned subsidiaries. In deciding the issue, the court stated: “A parent and its wholly owned subsidiaries no more have sufficient distinctiveness to trigger RICO liability than to trigger liability for conspiring in violation of the Sherman Act ... unless the enterprise’s decision to operate through subsidiaries rather than divisions somehow facilitated its unlawful activity, which has not been shown here.” Id. at 934 (citations" }, { "docid": "11790854", "title": "", "text": "services subsidiaries.” (CAC at 52.) Defendants assert these allegations are insufficient because a parent corporation and its subsidiaries cannot legally constitute a RICO enterprise. Plaintiffs disagree. Relying on the text of § 1962(c), courts have consistently held that “the ‘person’ must be a separate and distinct entity from the ‘enterprise.’ ” Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1396 (9th Cir.1986). Although the Ninth Circuit has not decided whether a parent and its subsidiary satisfies this distinctiveness requirement, other circuits have decided that these entities generally are not sufficiently distinct. See Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 934 (7th Cir.2003); Bessette v. Avco Financial Services, Inc., 230 F.3d 439, 449 (1st Cir.2000); Fogie v. THORN Americas, Inc., 190 F.3d 889, 898 (8th Cir.1999); Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.1993). These courts recognize that the parent and its subsidiary are separate legal entities. However, they also acknowledge that “a subsidiary that simply conducts its affairs as delegated by the parent company for the profit of the parent company is engaged in nothing more than a legitimate corporate and financial relationship, which is certainly not subject to RICO liability on that basis alone.” Bessette, 230 F.3d at 449 (citations omitted). Accordingly, these courts require “something more” to satisfy the distinctiveness requirement. See Bucklew, 329 F.3d at 934 (citations omitted) (stating plaintiffs must show that the “decision to operate through subsidiaries rather than divisions somehow facilitated [the enterprise’s] unlawful activity”); Bessette, 230 F.3d at 449 (quoting Brannon v. Boatmen’s First National Bank of Oklahoma, 153 F.3d 1144, 1148 (10th Cir.1998)) (same); Fogie, 190 F.3d at 898 (stating “there must be a greater showing that the parent and subsidiary are distinct than the mere fact that they are separate legal entities.”). Without conceding that this is the proper test for distinctiveness, Plaintiffs assert their allegations satisfy this test. They specifically rely on their allegations that: the participation by the LandSafe subsidiaries in the Countrywide Enterprise allows the enterprise to function more effectively, given that many of the functions provided by these" }, { "docid": "18076515", "title": "", "text": "fraud through its subsidiaries’ and dealers’ sales of extended warranties. Id. at 226. Again, these allegations failed to state a RICO claim because they did not claim that Chrysler was “empowered to perpetrate warranty fraud by selling through dealers rather than directly to the public[.] The warranty was issued by Chrysler, not by the dealers, and certainly not by other members of the Chrysler ‘family.’’? Id. at 228. The dealers had merely an incidental role in the alleged fraud and did not “lend an air of legitimacy” to an otherwise obviously illegitimate practice. Id. at 228-29. The court indicated that it is difficult, if not impossible, to establish distinctness when the “person” is a corporate parent and the “enterprise” consists of its subsidiaries or agents: [I]t is enough to decide this ease that where a large, reputable manufacturer deals with its dealers and agents in the ordinary way, so that their role in the manufacturer’s illegal ácts is entirely incidental, differing not at all from what it would be if these agents were the employees of a totally integrated enterprise, the manufacturer plus its dealers and other agents (or any subset, of the members of the corporate family) do not constitute an enterprise within the meaning of the statute. Id. at 228. This principle was reaffirmed just a few months ago in Emery v. American General Finance, Inc., 134 F.3d 1321 (7th Cir.1998). The plaintiff alleged that the RICO person, a consumer lending company, conducted the affairs of an enterprise consisting of both its subsidiaries and its parent corporation through a pattern of mail fraud. The court held that plaintiff failed to state a RICO claim. Id. at 1324. Including the corporate parent in the enterprise did not provide the requisite distinctness because the real perpetrators, as identified in the complaint, were the subsidiaries in the enterprise. The RICO person’s sole involvement was its status as their parent corporation. Id. Following Fitzgerald, the court reminded the plaintiff that alleging a parent company as the RICO person when the enterprise consists of its subsidiaries is rarely a successful pleading practice: Whether" }, { "docid": "6835126", "title": "", "text": "associated with” any “enterprise” from conducting or participating in the “conduct of such enterprise’s affairs through a pattern of racketeering activity.” The “person” must be distinct from the “enterprise” or one would be confronted with the anomalous situation of a “person” violating § 1962(c) by conducting his or her own affairs through a pattern of racketeering activity, a result at odds with the text of the statute. Atlas Pile Driving v. DiCon Fin., 886 F.2d 986, 995 (8th Cir.1989) (Section 1962(c) “has been interpreted as requiring that the person named as the defendant cannot also be the entity identified as the enterprise.”). How, indeed, could a “person” (whether a human being or a corporation) be “employed by or associated with” himself, herself or itself? To ask the question is to answer it. ? simple point—that for purposes of § 1962(c) a “person” must be distinct from the “enterprise” because the statute makes no sense linguistically if otherwise interpreted—has been sensibly extended to situations involving a parent corporation and its wholly owned subsidiary corporation. Thus, a number of courts have held that in cases involving no more than a parent corporation and its wholly owned subsidiary, such entities cannot together or alone form a RICO enterprise for § 1962(c) purposes when one or both are also the defendant “person” because a parent corporation and a wholly owned subsidiary are, from an economic perspective, one and the same. See, e.g., Glessner v. Kenny, 952 F.2d 702, 710 (3rd Cir.1991); Odishelidze v. Aetna Life & Casualty, 853 F.2d 21, 23-24 (1st Cir.1988); NCNB Nat’l Bank of North Carolina v. Tiller, 814 F.2d 931, 936 (4th Cir.1987), overruled on other grounds, Busby v. Crown Supply, 896 F.2d 833 (4th Cir.1990) (distinguishing between § 1962(a) and (c)). The Supreme Court recognized in the context of Section 1 of the Sherman Act that a wholly owned subsidiary is not different from its parent in any meaningful economic sense: A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not" }, { "docid": "8643370", "title": "", "text": "a RICO claim fails the distinctiveness requirement. See, e.g., Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913 F.2d 5, 6 (1st Cir.1990); see also Emery v. American Gen. Fin., Inc., 134 F.3d 1321, 1324-25 (7th Cir.) (explaining that it would be a different situation if criminals took over a subsidiary and wrested control of the parent and used the parent as an instrument for further criminal activities), cert. denied, 525 U.S. 818, 119 S.Ct. 57, 142 L.Ed.2d 44 (1998). This position was advocated by the Seventh Circuit in Emery v. American General Finance, Inc., 134 F.3d 1321, 1324-25 (7th Cir.1998), and concisely expressed by the Tenth Circuit in Brannon v. Boatmen’s First National Bank of Oklahoma, 153 F.3d 1144, 1148 (10th Cir.1998): “[AJt a bare minimum, an allegation of RICO liability under 1962(c) must indicate how the defendant used the alleged enterprise to facilitate the fraudulent conduct.” Otherwise, a subsidiary that simply conducts its affairs as delegated by the parent company for the profit of the parent company is engaged in nothing more than a legitimate corporate and financial relationship, see id.; Deane, 967 F.Supp. at 34, which is certainly not subject to RICO liability on that basis alone. As the Seventh Circuit has explained, a scheme does not implicate RICO merely because it originated with someone connected to a corporation. See Emery, 134 F.3d at 1324-25. Accordingly, we agree with the dismissal of Count IV. C. Count VI Count VI identifies John Does 1-10 as the “person” and AFS and Textron each as an “enterprise.” Specifically, the appellant alleges that John Does, as AFS employees, conducted the business activities of the enterprises through mail fraud. The problem with this formulation of the claim is that employees acting solely in the interest of their employer, carrying on the regular affairs of the corporate enterprise, are not distinct from that enterprise. See id.; Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 344 (2d Cir.1994) (“[W]here employees of a corporation associate together to commit a pattern of predicate acts in the course of their employment and on behalf of the corporation," }, { "docid": "18076516", "title": "", "text": "of a totally integrated enterprise, the manufacturer plus its dealers and other agents (or any subset, of the members of the corporate family) do not constitute an enterprise within the meaning of the statute. Id. at 228. This principle was reaffirmed just a few months ago in Emery v. American General Finance, Inc., 134 F.3d 1321 (7th Cir.1998). The plaintiff alleged that the RICO person, a consumer lending company, conducted the affairs of an enterprise consisting of both its subsidiaries and its parent corporation through a pattern of mail fraud. The court held that plaintiff failed to state a RICO claim. Id. at 1324. Including the corporate parent in the enterprise did not provide the requisite distinctness because the real perpetrators, as identified in the complaint, were the subsidiaries in the enterprise. The RICO person’s sole involvement was its status as their parent corporation. Id. Following Fitzgerald, the court reminded the plaintiff that alleging a parent company as the RICO person when the enterprise consists of its subsidiaries is rarely a successful pleading practice: Whether AGFC [the RICO person] operated through divisions ... or through wholly owned subsidiaries is a difference unrelated to any goal or policy of RICO.... The parent would be exercising power that is inherent in its ownership of wholly owned subsidiaries. There is no allegation that by using subsidiaries rather than divisions the AGF group somehow made it easier to commit or conceal the fraud of which the plaintiff complains. Id. Norwest contends that this case falls within the Richmond-Fitzgerald line of decisions and outside of Haroco. Essentially, Norwest argues that the NC and NC-led corporate group enterprises were pled to create the illusion of distinctness, when in fact there is no meaningful difference between Norwest and its parent corporation or the corporate group. Norwest maintains that it' is the real alleged perpetrator, which imposed the allegedly fraudulent proof of claim and property inspection fees while conducting its own affairs, not the affairs of a distinct enterprise. Thus, plaintiffs allegedly cannot show distinctness because they “do[ ] nothing more than describe the way in which virtually" }, { "docid": "6865931", "title": "", "text": "at 1064 (holding that three corporate defendants operating “within a unified corporate structure” and “guided by a single corporate consciousness” could not together constitute'the enterprise); Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995) (affirming dismissal of RICO claim when subsidiary, the alleged enterprise, took no actions independent of its defendant parent); Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.1993) (RICO claim against parent not stated when subsidiary, the alleged enterprise, “merely acts on behalf of, or to the benefit of, its parent”); NCNB Nat’l Bank of North Carolina v. Tiller, 814 F.2d 931, 936 (4th Cir.1987) (“[A] ‘person’, is not distinct from an ‘enterprise’ when a corporation and its wholly owned subsidiary are involved.”), overruled on other grounds by Busby v. Crown Supply, Inc., 896 F.2d 833 (4th Cir.1990). In light of this compelling precedent, we doubt plaintiff has properly, alleged a RICO enterprise distinct from Bancshares. Plaintiffs’ claim fails, however, for a more fundamental reason. As the Supreme Court has stated, “[a] violation of § 1962(e) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (footnote omitted). Each of these elements must be alleged in order to state a claim. See id. In this case, plaintiffs have simply failed to allege that Bancshares engaged in a “pattern of racketeering activity.” Although the complaint submits that Bancshares delegated responsibility for “servicing of the consumer credit obligations at issue in this case to Boatmen’s,” Appellant’s App. at 4 (Complaint, ¶ 12), it alleges only that Boatmen’s carried out the practices of which plaintiffs complain, see id. at 10-11 (Complaint, ¶¶ 43-48). Nowhere in the complaint is Bancshares alleged to have engaged in conduct constituting mail fraud. As such, the complaint fails to allege an actionable violation of § 1962(c) against Bancshares, and was therefore properly dismissed by the district court. Ill Plaintiffs’ final claim on appeal is that the district court abused its discretion by refusing to" }, { "docid": "7260029", "title": "", "text": "v. Ponce Fed. Bank, 948 F.2d 41, 44-45 (1st Cir.1991). “[T]he ‘person’ alleged to be en gaged in racketeering activity (the defendant, that is) must be an entity distinct from the ‘enterprise;’ under § 1962(c) the enterprise is not liable.” Odishelidze v. Aetna Life & Cas., 853 F.2d 21, 23 (1st Cir.1988). Indeed, most Circuits follow this established rule. See Khurana v. Innovative Health Care Sys., Inc., 130 F.3d 143, 155-156 (5th Cir.1997)(plaintiff failed to plead any distinct roles for the subsidiary and the parent so that they might be regarded as having any distinctiveness from the alleged association-in-fact enterprise); Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1063-1064 (2d Cir.1996) (where corporate entities are legally separate but “operate within a unified corporate structure” and are guided by a single corporate consciousness they cannot be both the “enterprise” and the “person” who conducts the affairs of the enterprise through a pattern of racketeering), vacated on other grounds, 525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998); NCNB Nat’l Bank of N.C. v. Tiller, 814 F.2d 931, 936 (4th Cir.1987) (bank could not be held liable under either § 1962(a) or (c) where its holding company and sole shareholder were alleged to be the enterprise); Emery v. Amer. Gen. Fin., Inc., 134 F.3d 1321, 1324 (7th Cir.1998) (holding that there can be no § 1962(c) claim against a subsidiary when the parent can exercise power over the subsidiary that is inherent in its ownership of wholly owned subsidiaries), cert. denied, — U.S. —, 119 S.Ct. 57, 142 L.Ed.2d 44 (1998). This rule of distinctiveness has led to two separate requirements when a § 1962(c) violation under RICO is alleged. First, because the “enterprise” can not be hable under this subsection, the defendant can not also be the alleged “enterprise” named in the complaint. The reason for this is obvious — “the unlawful enterprise itself cannot also be the person the plaintiff charges with conducting it.” Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996) (quoting Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913 F.2d 5, 6 (1st Cir.1990)). Second, when" } ]

[ { "docid": "22327719", "title": "", "text": "may be called without fear of reprisal. The danger to witnesses, and the difficulty in obtaining their cooperation, make the probable value of an adversary-type hearing doubtful in comparison to its obvious costs. A balance of the Mathews factors yields the conclusion that Ohio’s New Policy is adequate to safeguard an inmate’s liberty interest in not being assigned to OSP. Ohio is not, for example, attempting to remove an inmate from free society for a specific parole violation, see, e. g., Morrissey, 408 U. S., at 481, or to revoke good-time credits for specific, serious misbehavior, see, e. g., Wolff, 418 U. S., at 539, where more formal, adversary-type procedures might be useful. Where the inquiry draws more on the experience of prison administrators, and where the State’s interest implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in Greenholtz, 442 U. S. 1, and Hewitt v. Helms, supra, provide the appropriate model. Greenholtz, supra, at 16 (level of process due for inmates being considered for release on parole includes opportunity to be heard and notice of any adverse decision); Hewitt, supra, at 473-476 (level of process due for inmates being considered for transfer to administrative segregation includes some notice of charges and an opportunity to be heard). Although Sandin abrogated Greenholtz’s and Hewitt’s methodology for establishing the liberty interest, these cases remain instructive for their discussion of the appropriate level of procedural safeguards. Ohio’s New Policy provides informal, nonadversary procedures comparable to those we upheld in Greenholtz and Hewitt, and no further procedural modifications are necessary in order to satisfy due process under the Mathews test. Neither the District Court nor the Court of Appeals should have ordered the New Policy altered. The effect of the Prison Litigation Reform Act of 1995, in particular 18 U. S. C. § 3626(a)(1)(A), in this case has not been discussed at any length in the briefs. In view of our disposition it is unnecessary to address its application here. Prolonged confinement in Supermax may be the State’s only option for the control of some inmates, and" } ]

[ { "docid": "174960", "title": "", "text": "choose to attach as the basis for the deprivation. Indeed, one of the reasons the Supreme Court rejected the “mandatory language” analysis of Hewitt was because it had the “undesirable effect” of discouraging States from codifying prison management procedures to avoid creating “liberty” interests thereby “conferring standardless discretion on correctional personnel.” Similarly, a due process analysis that would allow correctional personnel to avoid the creation of “liberty interests” by simply assigning misbehaving inmates to a segregated confinement unit for “administrative” (as opposed to “disciplinary”) reasons seems to encourage the same “standardless discretion” which the Supreme Court found offensive in Sandin. ... Whatever [an inmate’s] due process rights may be, they should not be extinguishable simply by virtue of the fact that the confinement was labeled by prison officials as “administrative.” McClary, 4 F.Supp.2d at 199 (citations omitted). The majority asserts as an alternative rationale for finding no liberty interest that, because the prison is authorized to place an inmate in administrative segregation for an unlimited period of time under Ohio law (not exceeding the inmate’s sentence), placement in administrative segregation for more than two and a half years is not atypical. But the proper analysis should focus not on whether the prison was authorized to place Jones in administrative segregation for any particular length of time, but rather on determining the point at which the prison had to comply with the procedural safeguards provided by the Due Process Clause in order to keep him there. Unlike the majority, I believe that Sandin’s case-by-case approach mandates that we address the realities of the particular inmate’s deprivation, rather than engage in a broad-brush analysis. See Scott v. Albury, 138 F.3d 474, 479 (2d Cir.1998) (noting that Sandin requires courts to focus on the actual length of time an inmate was kept in solitary confinement, not how long he could have been kept there). II. Process Provided Jones argues that he was entitled to the due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The principles set forth in Wolff, however, only apply" }, { "docid": "23535676", "title": "", "text": "Bistrian agreed to intercept notes and cooperate against his fellow detainees. For the remainder of his second stay and his third (from December 22, 2006 to January 25, 2007), prison officials had a legitimate non-punitive purpose for Bistrian’s detention in the SHU — having him participate in the note-copying scheme and keeping him in what they thought was the safest possible place in the prison. With respect to his fourth confinement in the SHU, however, it is plausibly alleged that Warden Levi expressly intended to punish Bistrian by placing him there after his lawyer challenged his previous confinement. As discussed above, it is sufficient at this point that Bistrian has alleged that the Prison Management Defendants each shared responsibility for his placement in the SHU. He has not sufficiently pled, however, how Lt. Rodgers, Lt. Robinson, and Lt. Armisak, who are not among the Prison Management Defendants, were involved in the violation of his substantive due process rights. D. Count IV: Violation of Bistrian’s Procedural Due Process Rights “Although pretrial detainees do not have a liberty interest in being confined in the general prison population, they do have a liberty interest in not being detained indefinitely in the SHU without explanation or review of their confinement.” Stevenson, 495 F.3d at 69. Thus, procedural due process requires prison officials to “provide detainees who are transferred into more restrictive housing [,] for administrative purposes only [,] an explanation of the reason for their transfer as well as an opportunity to respond.” Id. at 70. Although Stevenson was decided in July 2007, after Bistrian had already been confined in the SHU three times, the rule the case announces was “compelled by our holding in Shoats v. Horn, 213 F.3d 140 (3d Cir.2000).” Stevenson, 495 F.3d at 69. In Shoats, we reaffirmed that sentenced inmates are entitled to minimal due process under the Supreme Court’s decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), which held that the removal of a sentenced inmate from the general prison population and his transfer into administrative segregation requires at least a" }, { "docid": "12753195", "title": "", "text": "placement review, the periodic review may also be an “informal and nonadversary” review, Rowe v. Hurley, No. 94-2343, 1995 WL 375861, at *3 (7th Cir. June 22, 1995), and.its frequency is committed to “the [administrative] discretion of the prison officials,” Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir.1990) (holding that 120-day interval satisfied due process); see Clark v. Brewer, 776 F.2d 226, 234 (8th Cir.1985); Smith, 946 F.2d at 1255 (“To conclude, however, that the due process clause fixes thirty days as the minimum frequency of the required review would be to legislate in the name of the Constitution at an excessive level of detail.... ”). The periodic review need only be sufficiently frequent that administrative segregation does not become “a pretext for indefinite confinement of an inmate” at Tamms. Hewitt, 459 U.S. at 477 n. 9, 103 S.Ct. 864. In short, the injunction goes well beyond what the Supreme Court has said is constitutionally required. By incorporating a highly specific notice-and-hearing system into the injunction, the district court has in effect established the details of that system as constitutional requirements. This is not the narrow tailoring that the PLRA requires. It is up to IDOC to craft transfer-review procedures that meet the requirements of due process. The court should do no more than to order IDOC officials to do so in general terms and to verify that the plan they submit satisfies the relevant constitutional standards. Accordingly, we Vacate the district court’s injunction and Remand with instructions to enter an injunction consistent with this opinion. . There were also some individual claims brought by specific inmates. Westefer v. Snyder, 422 F.3d 570, 576-85 (7th Cir.2005). None are relevant here. . The plaintiffs point to language in Wolff v. McDonnell stating that \"the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We have recently reaffirmed the right of inmates to \"an opportunity" }, { "docid": "10870518", "title": "", "text": "atypical and significant hardship within the meaning of Sandin and (2) that New York has by regulation granted inmates a protected liberty interest in remaining free from such confinement, I turn now to what process was due to McClary? It is well settled that prison administrators must be “accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment' are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See Sandin, 515 U .S. at 482, 115 S.Ct. 2293. (Federal courts must “afford appropriate deference and flexibility to state officials trying to manage a volatile [prison] environment”). Accordingly, the decision to place an inmate in administrative segregation is “subject to limited procedural safeguards.” Brown v. Plant, 131 F.3d 163, 170 (D.C.Cir.1997). See Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (one cannot automatically apply procedural rules designed for free citizens to the “very different situation” of segregation proceedings in state prisons). While Sandin “modified the analysis under which federal courts determine whether state law confers a liberty interest on inmates,” Arce v. Walker, 139 F.3d 329, 334, the decision did not revamp the requirements of due process once a liberty interest has been implicated. Thus, pre-Sandin precedent controls as to what process is due an inmate who is confined to administrative segregation. In Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) the Supreme Court defined the procedural due process to which an inmate is entitled when placed in administrative segregation. The Court held that “an informal, nonadversary review,” occurring within a “reasonable time following the inmate’s transfer,” id. at 476, 103 S.Ct. 864, where the inmate “receive[s] some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation” is sufficient due process under the circumstances. Id. at 460. In addition, prison officials must engage in “periodic review” of the" }, { "docid": "22818822", "title": "", "text": "may not recover because he has suffered no wrong cognizable under § 1983. See id. If the facts do establish a constitutional violation, however, we proceed to a second inquiry, asking “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151. If a reasonable officer could have believed that the challenged conduct was lawful at the time of the violation, then qualified immunity bars the claim. See id.; Luna v. Pico, 356 F.3d at 490. B. Inmate Due Process Claims The Fourteenth Amendment to the Constitution provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship. See Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (describing rights that must be afforded before revocation of good-time credits); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir.1999) (per curiam) (concluding atypical confinement may not be imposed without providing procedures enumerated in Wolff); see also Luna v. Pico, 356 F.3d at 487 (same). Given the procedural posture of this case, we assume, without deciding, that Sira’s six-month confinement in the special housing unit imposed an atypical hardship entitling him to due process. See generally Kalwasinski v. Morse, 201 F.3d at 107-08 (discussing factors relevant to deciding if confinement in special housing unit constitutes an atypical hardship). The due process protections afforded a prison inmate do not equate to “the full panoply of rights” due to a defendant in a criminal prosecution. Wolff v. McDonnell, 418 U.S. at 556, 94 S.Ct. 2963. Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. See id. at 567-70, 94 S.Ct. 2963. Nevertheless, an inmate is entitled to advance written notice of the charges against" }, { "docid": "12753196", "title": "", "text": "details of that system as constitutional requirements. This is not the narrow tailoring that the PLRA requires. It is up to IDOC to craft transfer-review procedures that meet the requirements of due process. The court should do no more than to order IDOC officials to do so in general terms and to verify that the plan they submit satisfies the relevant constitutional standards. Accordingly, we Vacate the district court’s injunction and Remand with instructions to enter an injunction consistent with this opinion. . There were also some individual claims brought by specific inmates. Westefer v. Snyder, 422 F.3d 570, 576-85 (7th Cir.2005). None are relevant here. . The plaintiffs point to language in Wolff v. McDonnell stating that \"the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We have recently reaffirmed the right of inmates to \"an opportunity to call witnesses and present documentary evidence (when consistent with institutional safety) to an impartial decision-maker.” Jones v. Cross, 637 F.3d 841, 845 (7th Cir.2011). However, both Wolff and Jones dealt with a hearing before a good-conduct credit-adjustment committee; good-time credit revocation affects the length of an inmate's incarceration and not merely his placement, and thus triggers greater due-process requirements than those that are called for in this context. Wilkinson v. Austin, 545 U.S. 209, 228, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005); see Hewitt v. Helms, 459 U.S. 460, 475, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (circumstances of confinement involve a lesser liberty interest and thus require less process than decisions affecting the length of confinement). Hewitt and Wilkinson set the correct constitutional standard for “informal, nonadversary'' review in the transfer-placement context." }, { "docid": "3712756", "title": "", "text": "the general prison population, as opposed to being held in disciplinary or administrative segregation. This court agrees with this phase of Petitioner’s argument. While the due process clause of the Constitution does not create such liberty interests, see Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974), the relevant federal statutes and regulations do create such an interest. See Young v. Kann, 926 F.2d 1396, 1399 (3d Cir.1991) (a federal prisoner “has a constitutionally protected liberty interest in good time credit”); Frankenberry, 677 F.Supp. at 796 (federal regulations provide an inmate with a liberty interest in remaining in general prison population and in accumulating good time credits). Thus, the court agrees with Petitioner’s general premise that his disciplinary hearing had to comply with due process; where the court disagrees with Petitioner is regarding exactly what process was due in his disciplinary proceedings. The seminal case detailing “what procedures constitute ‘due process of law\" ” in the context of prison disciplinary proceedings is Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Wolff, the United States Supreme Court stated that, even where an inmate has a constitutionally protected liberty interest in good time credits, prison disciplinary proceedings in which those credits may be taken away need not afford an inmate the Ml panoply of rights afforded to a defendant in a criminal prosecution. Id. at 556-57, 94 S.Ct. at 2974-75. “[0]ne cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a [] prison.” Id. at 560, 94 S.Ct. at 2977. Rather, a prisoner is entitled to only those procedures necessary to assure that his protected interest “is not arbitrarily abrogated.” Id. at 557, 94 S.Ct. at 2975. In Wolff, the Supreme Court stated that an inmate subject to a prison disciplinary proceeding must be afforded the following five due process safeguards: (1) the right to appear before an impartial decision-making body; (2) written notice of the" }, { "docid": "4146106", "title": "", "text": "atypical and significant hardship and that the state has granted, through regulation or statute, “a protected liberty interest in remaining free from that confinement or constraint.” Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). To determine whether an atypical and significant hardship has been imposed in a particular case, the district court must generally engage in detailed fact finding “to examine the circumstances of a confinement.” Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998). See also Frazier, 81 F.3d at 317; Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir.1997). The court should consider factors such as the length of prison confinement and the extent to which the conditions of disciplinary segregation differ from other routine prison conditions. Wright, 132 F.3d at 136. Wright alleges that he was assigned to the SHU for three years and lost three years of good time credits. The Court cannot say that the disciplinary actions taken against Wright do not, as a matter of law, constitute an atypical and significant hardship. See, e.g. Lee v. Coughlin, 26 F.Supp.2d 615, 637 (S.D.N.Y.1998) (Sotomayor, J.) (376 day confinement to the SHU was atypical and significant hardship). An atypical and significant hardship may be imposed only after an inmate is afforded advance written notice of the charges against him, a written statement by the prison factfinders regarding the evidence against the inmate, and the opportunity to call witnesses and present documentary evidence—when permitting the inmate to do so “will not be unduly hazardous to institutional safety or correctional goals.” Wolff v. McDonnell, 418 U.S. 539, 563-70, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See also Horne v. Coughlin, 155 F.3d 26, 30 (2d Cir.1998). Wright alleges that he was disciplined even though he was denied the protections set forth in Wolff, and therefore, states a claim for a violation of procedural due process. Defendants assert that they are entitled to qualified immunity because it was not clearly established at the time of Wright’s disciplinary hearing that assignment to the SHU for three years and the loss of good time credits and certain privileges constituted “atypical" }, { "docid": "12527387", "title": "", "text": "Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) that the removal of a sentenced inmate from the general prison population and his transfer into administrative segregation requires at least a minimal degree of process. The Court explained that “the Due Process Clause requires only an informal nonadversary review of evidence ... in order to confine an inmate feared to be a threat to institutional security to administrative segregation.” Id. at 474, 103 S.Ct. 864. This informal nonadversary review is satisfied when an inmate receives “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476, 103 S.Ct. 864. The Court further explained that “[t]he proceeding must occur within a reasonable time following an inmate’s transfer....” Id. at 476 n. 8, 103 S.Ct. 864. The degree of process required varies depending on the reason for the transfer, with greater process accorded to prisoners who are confined for disciplinary infractions than those moved for purely administrative reasons. See Mathews, 424 U.S. at 334, 96 S.Ct. 893. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that “written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense,” and “there must be a ‘written statement by the fact-finders as to the evidence relied on and reasons’ for the disciplinary action.” Id. at 564, 94 S.Ct. 2963. As the Second Circuit has noted, “the procedures required by Wolff apply if the restraint on liberty is imposed for disciplinary reasons; if the restraint is for ‘administrative’ purposes, the minimal procedures outlined in Hewitt are all that is required.” Benjamin, 264 F.3d at 190; see also Rapier v. Harris, 172 F.3d 999, 1005-06 (7th Cir.1999). Due to the unique exigencies of prison management, and in accordance with Hewitt, the minimal exchange of paperwork our holding will occasion need not occur prior" }, { "docid": "12753189", "title": "", "text": "right to appeal. An injunction of this scope and specificity is inconsistent with the “informal, nonadversary” model set forth in Wilkinson, Hewitt, and Greenholtz, and cannot be reconciled with the PLRA’s requirement that injunctions in prison-conditions cases must be narrowly drawn and use the least intrusive means of correcting the violation of the federal right. A few examples will suffice to explain the overbreadth of this injunction. Informal due process requires “some notice” of the reasons for the inmate’s placement, Hewitt, 459 U.S. at 476, 103 S.Ct. 864 (“An inmate must merely receive some notice of the charges against him....”), and enough time to “prepare adequately” for the administrative review, see Greenholtz, 442 U.S. at 14 n. 6, 99 S.Ct. 2100; see also Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (Notice gives an inmate time “to prepare for the appearance before the Adjustment Committee.”). In Wolff the Supreme Court held that inmates must receive notice “[a]t least a brief period of time ..., no less than 24 hours,” prior to a hearing to revoke good-conduct credits. 418 U.S. at 564, 94 S.Ct. 2963; see also Jones v. Cross, 637 F.3d 841, 845 (7th Cir.2011) (same). Here, the injunction requires that IDOC provide notice of the reasons for an inmate’s transfer to Tamms at least 48 hours before the hearing — twice the constitutional minimum for notice ordered by the Supreme Court in Wolff. And Wolff involved good-conduct credit revocation, which extends the length of an inmate’s incarceration, implicating a more significant liberty interest than a placement determination and requiring a greater measure of procedural protection. See Wilkinson, 545 U.S. at 228, 125 S.Ct. 2384. IDOC’s willingness to provide 48-hour notice as a part of its Ten-Point Plan goes beyond the 24-hour notice required in Wolff and thus passes constitutional muster. But it contradicts the PLRA’s narrow-tailoring requirement to mandate that specific timeframe in an injunction. Moreover, the informal review procedure contemplated by Wilkinson, Hewitt, and Greenholtz need only take place within a “reasonable time” of the inmate’s transfer into Tamms. The injunction here" }, { "docid": "23579421", "title": "", "text": "PER CURIAM. Indiana inmate Clyde Piggie seeks habeas corpus relief from two disciplinary convictions. Because he lost good-time credits as a result of each conviction, the petitions were properly brought under 28 U.S.C. § 2254, see Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir.2001), and the proceedings before the disciplinary board had to comply with minimal standards of due process, see Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In the prison disciplinary context, due process requires only that the prisoner receive advance written notice of the charges, see Wolff, 418 U.S. at 564, 94 S.Ct. 2963, an opportunity to present testimony and documentary evidence to an impartial decision-maker, id. at 566, 570-71, 94 S.Ct. 2963, and a written explanation for the discipline, id. at 564, 94 S.Ct. 2963, that is supported by “some evidence” in the record, see Hill, 472 U.S. at 454-55, 105 S.Ct. 2768; Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.2000). The district court denied Piggie’s petitions, concluding that the proceedings in each case satisfied those standards. We consolidated the appeals, and now affirm in both cases. 1. Appeal No. 02-3068 Appeal no. 02-3068 comes to us after remand. In that case Piggie challenged the conduct adjustment board’s (“CAB”) decision finding him guilty of sexual assault for grabbing a correctional officer’s buttocks when he passed her in a prison hallway on May 7, 1999. The facts are explained in detail in Piggie v. McBride, 277 F.3d 922 (7th Cir.2002) (“Piggie I”). Piggie contended that the CAB violated his due process rights by refusing to view a surveillance tape of the incident that he maintains would have exculpated him, despite his requests during the screening process and at the CAB hearing. The district court, Judge Sharp, initially contemplated granting the writ but later reconsidered on the ground that the court was bound by the prison superintendent’s finding on administrative appeal that Pig-gie had not requested the tape. We vacated and remanded for" }, { "docid": "816552", "title": "", "text": "1218, 1221 (10th Cir.2006)(“A due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered.”) (citation omitted). Although due process protections extend to prisoners, the extent of that protection is significantly less than that guaranteed to non-prisoners. Estate of DiMarco v. Wyoming Dept. of Corr., 473 F.3d 1334, 1339 (10th Cir.2007)(citing Wolff v. McDonnell, 418 U.S. 539, 555-557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). “[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement” for prisoners; nonetheless, “a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). The Supreme Court has instructed, however, that unless the conditions of confinement “impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life[,]” state regulations or policies do not create a liberty interest for prisoners in the conditions of confine ment. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Tenth Circuit recently stated that in determining if a prisoner has a protected liberty interest, courts should examine whether: “(1) the segregation relates to and furthers a legitimate penalogical interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement, as it did in Wilkinson; and (4) the placement is indeterminate (in Wilkinson the placement was reviewed only annually).” Estate of DiMarco, 473 F.3d at 1342. First, the court must examine the purpose of Mr. Hunt’s placement in administrative segregation. The Administrative Segregation Report indicates that Mr. Hunt was placed in administrative segregation because he was classified as an “other security risk” due to his previous involvement with the BGD, a prison gang. Even when viewed in the light most favorable to Mr. Hunt, the record indicates that Mr. Hunt had a history of strong-arming weaker inmates, playing games with staff, and assuming the" }, { "docid": "5311796", "title": "", "text": "forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). On the other hand, when a prisoner is confined to SHU for administrative reasons, he is entitled to fewer procedural protections. Generally, prison inmates have no liberty interest in remaining within the general prison population, and out of administrative segregation, unless the state has chosen to create such an interest by enacting certain statutory or regulatory measures. Hewitt v. Helms, 459 U.S. 460, 468-69, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). The mere adoption by the state, however, of “procedural guidelines, without more,” is insufficient to give rise to a liberty interest protected under the fourteenth amendment; only “the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” Id. at 471-72, 103 S.Ct. at 871. In addition, even when the state creates a protected liberty interest, the inmate confined for administrative reasons is entitled to only minimal process— “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476, 103 S.Ct. at 874; see also Bolden v. Alston, 810 F.2d 353, 357 (2d Cir.1987). Ordinarily, a written statement by the inmate to the prison officials who are reviewing his confinement will demonstrate that an inmate has been notified of the charges against him and that he has been given an adequate opportunity to present his views to those officials. Hewitt, 459 U.S. at 476, 103 S.Ct. at 874. In the present case, appellees claim (1) that Matiyn’s four-day confinement was administrative, not punitive; and (2) that the governing statutes and regulations of the State of New York do not bestow upon prison inmates a protected liberty interest in remaining free from administrative segregation. To assess these claims, we note first that the relevant state statute permits the State Department for Correctional Services to adopt whatever regulations it sees fit for the classification of inmates. N.Y. Correc.Law § 137(1)" }, { "docid": "864267", "title": "", "text": "afforded to inmates who are not subject to disciplinary restrictions “has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated”. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935. It is concluded that plaintiff was not afforded any required procedures at Trenton State Prison. (27a) In response to Gibson’s claims, and the district court’s holding, New Jersey argues that: (1) Gibson had no state-created “liber ty interest” which would have entitled him to a general population cell after his first 30 days in prison; (2) that no such “liberty interest” entitling Gibson to a particular “way of life” was ever created by New Jersey law; and (3) that any reliance on disciplinary regulations, as creating a liberty interest, was misplaced. We turn to these contentions. B. At first blush Gibson’s argument has surface appeal. It is undisputed that for a period of almost three months, Gibson, who had committed no infraction, who was not a disciplinary or risk prisoner, and who needed no protection for his own well-being, was incarcerated in a type of confinement normally associated with prisoners who are under disciplinary sanction or who require protection. However, despite the acknowledged severity of Gibson’s confinement, we cannot lose sight of the uncontroverted fact that the reason for Gibson’s placement in a Seven Up cell was his quarantine status as a newly admitted prisoner at a time when New Jersey’s prison system was experiencing a grave shortage of general population cell space. Because Gibson’s segregated confinement resulted from a lack of prison housing, our inquiry cannot be resolved by reference to those cases which concern prison discipline, (Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)) or cases which concern prisoner isolation in special risk units (Hodges v. Klein, 421 F.Supp. 1224 (D.N.J.1976), affirmed 562 F.2d 276 (3d Cir. 1977)), or instances where prisoner isolation is ordered for reasons of protective custody." }, { "docid": "23234161", "title": "", "text": "Dorhman- — is a defendant in this case, the Hearing Panel was biased. See id. at 20. Mr. Gwinn’s challenges are not expressly resolved by our opinion in Chambers. There, because the plaintiff inmate received no hearing whatsoever, we were not required to address the particular procedural protections that must be provided to inmates who have never been convicted of a sex offense before prison officials may classify them as sex offenders in a manner that deprives them of a liberty interest. However, in Chambers we relied on the Ninth Circuit’s decision in Neal v. Shimoda, 131 F.3d 818 (9th Cir.1997). There, the court held that an inmate who has not previously been convicted of a sex offense may be classified as a sex offender for purposes of a prison treatment program only if the prison affords him the procedural protections to which prisoners facing disciplinary sanctions involving liberty interests are generally entitled. See id. at 830-31. Here, because there is no dispute that Mr. Gwinn’s classification as a sex offender reduced the rate at which he could earn good time credits and implicated a liberty interest, we conclude that Mr. Gwinn, like the plaintiff in Chambers, was entitled to those same procedural protections. Those procedural requirements are set forth in the Supreme Court’s decision in Wolff, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935: notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. See Neal, 131 F.3d at 830 (adopting these requirements for a hearing regarding the classification of an inmate as a sexual offender); Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir.1996) (discussing the requirements for prison disciplinary hearings under Wolff). Additionally, in order to comport with due process, there must be some evidence to support the hearing panel’s decision id., and the decisionmaker must be impartial. See Wolff, 418 U.S. at 592, 94 S.Ct. 2963 (Marshall, J., concurring) (stating that “an impartial decisionmaker is a fundamental requirement of due" }, { "docid": "864266", "title": "", "text": "were faced with a severe housing shortage (23a), the district court conceived that its task required an inquiry into “whether there are established policies which have created for the plaintiff some liberty interest requiring due process protection.” (25a). After reviewing the policies of the New Jersey Department of Corrections which are reflected in the New Jersey Administrative Code, Administrative Plan Manual, and in the Trenton State Prison Inmate Handbook, the district court concluded that “While none of the enumerated privileges [clothing, recreation, movies, etc.] individually rises to the substance of a constitutionally protected right, all of them taken together appear to present a way of life which is guaranteed to New Jersey prisoners.” (emphasis supplied) (26a). The nub of the district court’s conclusions is expressed in its summary: It is concluded that the expressed policies of the Department of Correction created a justifiable expectation that plaintiff would not be confined in isolation for three months in the conditions found to have existed. It is concluded that plaintiff’s interest in the way of life which is afforded to inmates who are not subject to disciplinary restrictions “has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated”. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935. It is concluded that plaintiff was not afforded any required procedures at Trenton State Prison. (27a) In response to Gibson’s claims, and the district court’s holding, New Jersey argues that: (1) Gibson had no state-created “liber ty interest” which would have entitled him to a general population cell after his first 30 days in prison; (2) that no such “liberty interest” entitling Gibson to a particular “way of life” was ever created by New Jersey law; and (3) that any reliance on disciplinary regulations, as creating a liberty interest, was misplaced. We turn to these contentions. B. At first blush Gibson’s argument has surface appeal. It is undisputed that for a period" }, { "docid": "864331", "title": "", "text": "of exercise even though confined to administrative segregation (N.J.A.C. 10:69 69-13). The importance of recreation in a prison environment can best be appreciated in the light of a pointed provision in the Administrative Code. “All inmates are eligible to participate in the recreation program. The only restrictions are for medical or disciplinary reasons.” N.J.A.C. 10:35-45.2. One hour’s daily active recreation is to be afforded to inmates. N.J.A.C. 10:35 — 45.3. Those inmates who are confined to Administrative Segregation and whose privileges are restricted for disciplinary or security reasons are seemingly guaranteed some exercise. See N.J.A.C. 10:35-70-6. “Evidence must be presented at the hearing, for example, which indicates security reasons for not allowing such inmates to be freed for exercise purposes.” It is of some interest to note that these listed privileges, when taken together, appear to establish a practice of affording inmates an opportunity to associate with other inmates. It is highly unlikely that active recreation and attendance at movies and television are intended to be afforded to prisoners in isolation from each other. It is concluded that the expressed policies of the Department of Correction created a justifiable expectation that plaintiff would not be confined in isolation for three months in the conditions found to have existed. It is concluded that plaintiffs interest in the way of life which is afforded to inmates who are not subject to disciplinary restrictions “has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935. It is concluded that plaintiff was not afforded any required procedures at Trenton State Prison. Appendix at 26a and 27a. . As noted earlier, it is difficult to see how the prison officials can argue that Gibson required isolation prior to his filing of a complaint in district court but somehow did not afterwards. . As our court wrote in Ross v. Horn, 598 F.2d 1312," }, { "docid": "14371270", "title": "", "text": "administrative segregation, Hewitt grants him no such rights. Hewitt, 459 U.S. at 476, 103 S.Ct. at 873; see Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir.1986) (\"[T]he due process clause does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation.\"), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); cf. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (inmates facing loss of good-time credits arising from disciplinary charges for misconduct must be given advance notice of charges, opportunity for evi-dentiary hearing, decision by impartial tribunal, and written statement of reasons to satisfy due process). .See, e.g., Hewitt, 459 U.S. at 477 & n. 9, 103 S.Ct. at 874 & n. 9 (affirming summary judgment for prison officials; Pennsylvania law conferred liberty interest on inmates in remaining in general population; five-day delay prior to review of inmate's administrative confinement satisfied due process); Jones v. Coonce, 7 F.3d 1359 (8th Cir.1993) (reversing in part and affirming in part denial of summary judgment for prison officials on qualified immunity; Missouri law conferred liberty interest on inmates in remaining in general population; thirty-day delay prior to informal nonadversary review was unreasonable, whereas delays of up to fifteen days were reasonable); Black v. Parke, 4 F.3d 442 (6th Cir.1993) (affirming denial of summary judgment for prison officials on qualified immunity; Kentucky law conferred liberty interest on inmates in remaining in general population; whether inmate received due process while under \"lock down” was triable issue); Layton v. Beyer, 953 F.2d 839 (3d Cir.1992) (vacating entry of judgment for inmate following bench trial; New Jersey law conferred liberty interest on inmates in remaining in general population; remand for finding whether twenty-day delay prior to hearing was reasonable); Frazier v. DuBois, 922 F.2d 560 (10th Cir.1990) (reversing § 1915(d) dismissal; inmate's claim that he was placed arbitrarily in administrative segregation without a hearing was before court on incomplete record as to nature of inmate's confinement, prison regulations" }, { "docid": "864299", "title": "", "text": "protective custody and pre-disciplinary detention. The middle floors comprise the Management Control Unit, inmates who are high risk security problems. Seven Up occupies the upper floors of the wing. Appendix at 13a-15a. Based on these findings of fact and a review of the Trenton State Prison Inmate Handbook 1977 and the Trenton State Prison Inmate Handbook Addendum February 18, 1977 (collectively the Handbook), which establish inmates’ rights and responsibilities, the Magistrate recommended an $800 damage award against Hilton for violating the fourteenth amendment rights of Gibson. She recommended that judgment be entered in Hilton’s favor on the eighth amendment claim and in Lynch’s favor on both the fourteenth and eighth amendment claims relating to Gibson’s confinement at Yardville. She further recommended judgment in favor of Fauver on both claims as he was not the Commissioner at the time the events occurred. In an April 17, 1980 Order, the district court adopted the recommendations of the Magistrate including those related to attorney’s fees and costs. The defendant, Gary Hilton, filed a timely Notice of Appeal and Gibson did not cross-appeal. II. State-Created Liberty Interests It is axiomatic that before the due process clause of the fourteenth amendment is triggered, Gibson must establish the existence of a constitutionally significant liberty interest. It is also clear that, “[ljiberty interests may be created by state law as well as by federal law.” Majority Opinion, Typescript at 9; Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court stated, “that to obtain a protectible right a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” 442 U.S. at 7, 99 S.Ct. at 2103 (citation omitted), quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 538 (1972); Micklus v. Carlson, 632 F.2d 227, 237-38 (3d Cir. 1980); Winsett v. McGinnes," }, { "docid": "174961", "title": "", "text": "sentence), placement in administrative segregation for more than two and a half years is not atypical. But the proper analysis should focus not on whether the prison was authorized to place Jones in administrative segregation for any particular length of time, but rather on determining the point at which the prison had to comply with the procedural safeguards provided by the Due Process Clause in order to keep him there. Unlike the majority, I believe that Sandin’s case-by-case approach mandates that we address the realities of the particular inmate’s deprivation, rather than engage in a broad-brush analysis. See Scott v. Albury, 138 F.3d 474, 479 (2d Cir.1998) (noting that Sandin requires courts to focus on the actual length of time an inmate was kept in solitary confinement, not how long he could have been kept there). II. Process Provided Jones argues that he was entitled to the due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The principles set forth in Wolff, however, only apply when the inmate is being subjected to disciplinary action, as opposed to segregation for administrative reasons. See 418 U.S. at 560, 94 S.Ct. 2963. Although under active criminal investigation during his administrative segregation, Jones was not charged with any prison rule violation until January 11, 1996, when the Board determined that he should continue in administrative segregation for murdering a prison guard. It is only after that point in time that the procedural protections provided in Wolff were triggered. Because Jones has not challenged his continued confinement in administrative segregation since the Board’s decision, there is no need to determine whether Jones’s continued confinement meets with the due process protections afforded by Wolff In contrast, the Court in Hewitt set forth the protections that the Due Process Clause affords inmates who are placed in solitary confinement for administrative reasons. The Court held that in order to transfer an inmate from an already restricted environment (general prison conditions) to a more confining condition (solitary confinement) out of fear that the inmate poses a threat to prison" } ]

[ { "docid": "22919727", "title": "", "text": "variety of petroleum and petroleum products. Reg. No. 29308, dated September 7, 1971. . This is to be distinguished from the situation where one party seeks a modification that will alleviate or eliminate conditions or restrictions imposed by the original decree. See United states v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2961 (1973). . Defendant contends for the first time on appeal that the principles of res judicata and collateral estoppel preclude our considering whether there is a likelihood of confusion between Texon and EXXON. These matters are affirmative defenses that must be pleaded in the trial court. F.R.C.P., Rule 8(c). They will not be considered for the first time on appeal. Henry v. First National Bank of Clarksdale, 595 F.2d 291, 298 n.l (5th Cir. 1979). Since defendant failed to raise these issues for the district court’s consideration, we refuse to consider them here. JOHN R. BROWN, Circuit Judge, dissenting in part: The difference between me and a full concurrence in the scholarly opinion of Judge Sam D. Johnson is not a sentence, a phrase or a word. Indeed, it is not even a single letter. What, and all, that divides us is a simple - The opinion properly REVERSES the trial court to forbid the use of the term TEXON But it puts the imprimatur of law to permit the use of TEX-ON Now nearly a quarter of a century later this pricks my slumbering judicial conscience for having, in the very first week of my career, concurred in a holding that a trial Judge could properly find no likelihood of consumer confusion between loaves of bread wrapped and labelled: DANDY DANDEE Webb’s City, Inc. v. Bell Bakeries, 226 F.2d 700 (5th Cir. 1955) If confession is good for the soul, as I thought by “my self-confessing concurrence in 1960 en banc opinion, Butler v. Bazemore, 5 Cir., 1962, 303 F.2d 188, overruling my earlier 1957 effort for the panel in Bazemore v. Whittington, 5 Cir., 1957, 245 F.2d 943”." } ]

[ { "docid": "4313721", "title": "", "text": "was filed—is inexcusable. Assuming without deciding that the trustee’s delay was inexcusable, the court is nevertheless not persuaded that the Bankruptcy Court erred by concluding that the equities weighed against applying the doctrine of laches in this case because Barry failed to present any evidence demonstrating that the trustee’s inexcusable delay prejudiced his ability to mount a full and fair defense on the merits. Although Barry argues that “the record is replete with testimony of vital witnesses, including the Trustee and his employees, stating under oath that they were unable to remember vital facts and conversations that were so remote at the time,” Barry has neither identified any specific witnesses with lapsed memories, nor explained how the unreliability of any witness’s memory of relevant events undermined his ability to mount a full and fair defense, or the Bankruptcy Court’s ability to judge the facts. See Aukerman, 960 F.2d at 1038. B. Res Judicata Asserting that the court held the debtor responsible for all costs in the adversary action filed by the trustee, Barry argues that the sanctions imposed against him are barred by the doctrine of res judicata because the trustee could and should have named him as a defendant in that adversary action. The trustee responds that this argument is barred because it was not raised before the Bankruptcy Court, and because Barry could not have been named as a defendant in the adversary action brought against the debtor since the causes of action asserted therein had nothing to do with his conduct as debtor’s counsel in the bankruptcy proceedings. The court does not need to address Barry’s res judicata argument because Barry neither pleaded it in response to the trustee’s motion for sanctions nor presented it to the Bankruptcy Court. See American Furniture Co., Inc. v. International Accommodations Supply, 721 F.2d 478, 482-83 (5th Cir.1981) (res judicata is an affirmative defense that must be raised in the defendant’s response or else waived under Federal Rule of Civil Procedure 8(c)); Matter of Gilchrist, 891 F.2d 559, 561 (5th Cir.1990) (“It is well established that we do not consider arguments" }, { "docid": "13308554", "title": "", "text": "the issue of res judicata explicitly. Nevertheless, where a purely legal issue provides alternative grounds to uphold the judgment of the district court, we may reach the issue, provided the record permits its resolution as a matter of law. See, e.g., Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000); Faughender v. City of N. Olmsted, 927 F.2d 909, 913 (6th Cir.1991); see also Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir.1997) (applying this reasoning as a basis for sua sponte consideration of -a collateral estoppel defense); Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1172 (5th Cir.1992) (same as to res judicata defense). Furthermore, we have not failed to exercise our discretion to reach an issue that the parties have not briefed where it involves a “pure question of law that cries out for resolution.” Rybarczyk v. TRW, Inc., 235 F.3d 975, 984 (6th Cir.2000); see also Dorris v. Absher, 179 F.3d 420, 425-26 (6th Cir.1999). See generally United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 445-48, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (confirming the power of appellate courts to consider an issue not raised by the parties). Under both federal and Tennessee law, res judicata is an affirmative defense that should be raised by the defending party. Fed.R.Civ.P. 8(c) (“In pleading to a preceding pleading, a party shall set forth affirmatively ... res judicata ... and any other matter constituting an avoidance or affirmative defense.”); Tenn. R. Civ. P. 8.03; Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (“Res judicata and collateral estoppel are affirmative defenses that must be pleaded.”); Mun. Resale Serv. Customers v. Fed. Energy Regulatory Comm’n, 43 F.3d 1046, 1052 n. 4 (6th Cir.1995); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn.Ct.App.1977); see also Westwood Chem. Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981) (explaining that although res judicata is an affirmative defense ordinarily raised in the pleadings, it may also be asserted by motion). Defendants did not assert the" }, { "docid": "23171373", "title": "", "text": "argue in the alternative that, even if the language of the release does include SunAmerica, the release itself is invalid because it was procured through the fraudulent misrepresentations of Southmark’s attorneys that Southmark was insolvent and could not pay any more toward Plaintiffs’ claims. We need not address Plaintiffs’ primary contention because we find that their relitigation of the claims against Sun-America is barred by res judicata. We begin by noting that SunAmerica did not plead the doctrine of res judicata as an affirmative defense. Under Federal Rule of Civil Procedure 8(c), the doctrine must be affirmatively pled. Failure to so plead usually precludes the district court and appellate courts from considering the doctrine. Carbonell v. Louisiana Dep’t of Health & Human Servs., 772 F.2d 185, 189 (5th Cir.1985). We have held, however, that we may raise the issue of res judicata sua sponte “as a means to affirm the district court decision below.” United Home Rentals, Inc. v. Texas Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983), cert. denied, 466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984); see also Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971). In American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981), we noted as follows: We are cognizant that res judicata, as such, has not been specially pled. Fed. R.Civ.P. 8(c). In the posture of this case, however, where all of the relevant facts are contained in the record before us and all are uncontroverted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to the dispositive facts, simply because neither party has seen fit to invite our attention to the issue by technically correct and exact pleadings. We do so sua sponte. See also Nagle v. Lee, 807 F.2d 435, 438 n. 2 (5th Cir.1987); see generally Meza v. General Battery Corp., 908 F.2d 1262, 1274 (5th Cir.1990) (appellate court may affirm a summary judgment on grounds other than those relied upon by the district court when it finds" }, { "docid": "22966525", "title": "", "text": "appellate court to raise the issue sua sponte. Id. at 189. In Boone v. Kurtz, 617 F.2d 435 (5th Cir.1980), we recognized one of the exceptions when we held that the district court could sua sponte dismiss an action on res judicata grounds in the interest of judicial economy where the previous action had been brought before a court of the same district, even though the record contained neither the complaint nor the order of dismissal in the earlier action. Id. at 436. As in Boone, both cases filed by Nagle were before the Eastern District of Louisiana. See also United Home Rentals v. Texas Real Estate Commission, 716 F.2d 324, 330 (5th Cir.1983). Furthermore, the record contains copies of the complaint in Nagle’s first suit and the minute-entry or der of dismissal of that suit. Thus the district court’s sua sponte consideration of the defendants’ res judicata defense falls within the Boone exception. Nagle argues that Boone “might be straying from the Rules of Civil Procedure too far.” Regardless of Nagle’s displeasure with Boone, we are bound by its dictates. Until overruled by the court en banc or the Supreme Court, Boone is the law of the circuit, and we are obligated to follow it. E.g., Washington v. Watkins, 655 F.2d 1346, 1354 n. 10 (5th Cir. 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982). In addition to the applicability of Boone, we also note that the defendants raised their res judicata defense in their motion to dismiss Nagle’s second suit. Such a motion has been held sufficient to raise the plea of res judicata. American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981); see also Scott v. Kuhlmann, 746 F.2d 1377,1378 (9th Cir.1984) (although res judicata had been asserted by motion to dismiss rather than answer, a duty exists to affirm district court’s judgment on any ground fairly supported by the record); Jones v. Gann, 703 F.2d 513, 515-16 (11th Cir.1983) (same); Moch v. East Baton Rouge Parish School District, 548 F.2d 594, 596 n. 3 (5th Cir.) (same)," }, { "docid": "9492241", "title": "", "text": "from multiple lawsuits.” Fine, 676 So.2d at 1136. The application of res judicata works no undue hardship on Jackson. Instead, this is a textbook case for claim preclusion, because both parties had their day in court on these very issues. Moreover, Jackson is not left without a forum, because the Mexican and Honduran courts are still available to him. As a result, the Louisiana trial court’s dismissal was “without prejudice” only with respect to Jackson’s right to bring foreign law claims in Mexican or Honduran courts. In contrast, the “subject only to” language indicates that the dismissal would be preclusive in state and federal courts. B. The only remaining issue, then, is whether defendants have waived this argument by not raising it in federal district court. We conclude they have not. First, the defendants correctly point out that we can raise this issue sua sponte, even where neither party mentions it. For example, in Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir.1992), we noted: Under Federal Rule of Civil Procedure 8(c), the doctrine [of res judicata] must be affirmatively pled. Failure to so plead usually precludes the district court and appellate courts from considering the doctrine. We have held, however, that we may raise the issue of res judi-cata sua sponte “as a means to affirm the district court decision below.” ... In the posture of this case, ... where all of the relevant facts are contained in the record before us and all are uncontro-verted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to the dispositive facts, simply because neither party has seen fit to invite our attention to the issue by technically correct and exact pleadings. We do so sua sponte. (Internal citations omitted.) Thus, it follows that we can consider the issue when it expressly was raised by the defendants, even where they failed to argue it in the district court. Second, other considerations counsel in favor of our considering the res judicata issue. The reason defendants did not raise this argument" }, { "docid": "18728563", "title": "", "text": "party or his privy and of promoting judicial economy by preventing needless litigation”). When such actions proceed simultaneously, as here, the first judgment entered must be regarded as res judicata for issues in the remaining case. E.g., Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981). The Supreme Court has noted that res judicata “promote[s] the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Accordingly, the law is well-settled that federal courts must give prior state court judgments the same preclusive effect they would have in the courts of that state. Migra v. Warren City School District, 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984) (applying Ohio law of res judicata); FDIC v. Eckhardt, 691 F.2d 245 (6th Cir.1982). See also 28 U.S.C. § 1738 (1982). Appellees raised the defense of res judicata for the first time on appeal, and federal courts are divided over the issue of whether res judicata may be asserted as a defense for the first time on appeal. Several circuits seem to hold that res judicata is an affirmative defense which, if not pleaded or otherwise properly raised at trial, is waived for purposes of appeal. See, e.g., Savings & Profit Sharing Fund v. Gago, 717 F.2d 1038, 1039 n. 3 (7th Cir. 1983); Nevada Power Co. v. Watt, 711 F.2d 913, 932-33 (10th Cir.1983); Hifai v. Shell Oil Co., 704 F.2d 1425, 1428 (9th Cir.1983). Yet some circuits regard the desirability of avoiding duplicative litigation as sufficiently compelling to permit the court to raise the defense sua sponte. E.g., Alyeska Pipeline Service Co. v. United States, 688 F.2d 765, 771, 231 Ct.Cl. 540 (1982), cert. denied 461 U.S. 943, 103 S.Ct. 2120, 77 L.Ed.2d 1301 (1983); American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981); Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971). This circuit has not passed on this issue as a general proposition, and" }, { "docid": "2744282", "title": "", "text": "978 F.2d 1269, 1297 (D.C.Cir.1992) (Henderson, J., concurring); cf. Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir.1997) (appellate court may raise res judicata sua sponte to affirm district court); Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir.1992) (same). In the circumstances of this ease, where there is no prejudice to the plaintiff, no forfeiture has yet occurred, the relevant facts stand uncontroverted in the record before us, and denial would only engender delay, we are willing to consider the defense for the first time on appeal. We give judgments of other courts the same preclusive effect as would the issuing court — in this case, the D.C. Court of Appeals. See 28 U.S.C. § 1738; Matsushita Elec. Industrial Co. v. Epstein, — U.S. -, -, 116 S.Ct. 873, 877, 134 L.Ed.2d 6 (1996). The DCCA (as litigant before us) suggests that in its adjudication of Stanton’s reinstatement petitions, it has already declared his current constitutional claims barred by res judicata. The decisions do not in fact do so. The DCCA has considered and rejected three of Stanton’s reinstatement petitions. See Stanton III; Stanton TV; Stanton V. In the first and third of these, Stanton raised constitutional arguments that the court refused to consider on res judicata grounds. See Stanton III, 532 A.2d at 96; Stanton V, 682 A.2d at 656 n. 4. But, although the petitions were for reinstatement, the challenges that the DCCA barred under res judicata were ones directed at the original suspension proceeding, proposing by way of relief that the suspension order be vacated or rescinded. And each was held precluded by Stanton’s failure to raise it as a defense at his suspension hearing. The claims now before us, by contrast, are directed at general aspects of the reinstatement proceedings and seek only prospective relief. The DCCA has not considered them. We •thus conduct our own inquiry into whether D.C. res judicata principles preclude them. First, we note that because the D.C. courts have never considered Stanton’s due process claims on the merits, there is no possibility that issue preclusion would" }, { "docid": "18728564", "title": "", "text": "issue of whether res judicata may be asserted as a defense for the first time on appeal. Several circuits seem to hold that res judicata is an affirmative defense which, if not pleaded or otherwise properly raised at trial, is waived for purposes of appeal. See, e.g., Savings & Profit Sharing Fund v. Gago, 717 F.2d 1038, 1039 n. 3 (7th Cir. 1983); Nevada Power Co. v. Watt, 711 F.2d 913, 932-33 (10th Cir.1983); Hifai v. Shell Oil Co., 704 F.2d 1425, 1428 (9th Cir.1983). Yet some circuits regard the desirability of avoiding duplicative litigation as sufficiently compelling to permit the court to raise the defense sua sponte. E.g., Alyeska Pipeline Service Co. v. United States, 688 F.2d 765, 771, 231 Ct.Cl. 540 (1982), cert. denied 461 U.S. 943, 103 S.Ct. 2120, 77 L.Ed.2d 1301 (1983); American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981); Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971). This circuit has not passed on this issue as a general proposition, and we need not do so here. However, our prior decisions suggest that under these particular circumstances, we should not find this res judicata defense to have been waived by the failure of defendants to raise it in the district court. We have previously decided only that express waiver of collateral estoppel is permissible, as it is with any affirmative defense. Chrysler Corp. v. United States, 190 F.Supp. 412, 412-13 (D.Mich. 1960), aff'd 300 F.2d 154 (6th Cir.1962) (per curiam). See also National Treasury Employees Union v. IRS, 765 F.2d 1174, 1176 n. 1 (D.C.Cir.1985). Moreover, we have refused to find res judicata waived by a failure to plead where, as here, the prior judgment relied on “was clearly called to the District Court’s attention before it rendered its decision,” and where “having fully briefed ... the issue on appeal, [the party complaining was not] prejudiced thereby.” Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1228 (6th Cir.1981). Thus, our previous decisions have at least recognized that not every failure to plead res judicata as an" }, { "docid": "22966541", "title": "", "text": "reasons, the district court’s dismissal of Nagle’s action against Officers Laura and Montecino is REVERSED and the cause REMANDED for further proceedings; the district court’s dismissal of Nagle’s action against Sheriff Lee is AFFIRMED. REVERSED AND REMANDED IN PART; AFFIRMED IN PART. E. Nagle finally contends that the district court’s dismissal of his first suit and the subsequent res judicata holding in favor of Sheriff Lee in this second suit constitute an . Nagle filed a memorandum in opposition to the motion in which he argued his suit had not prescribed; he did not, however, address or oppose the res judicata defense. . The second exception allows a court to raise the res judicata defense on its own when all the relevant data and legal records are before the court and the demands of comity, continuity in the law, and essential justice mandate judicial invocation of the principles of res judicata. See American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir. 1981). . At no time has Nagle questioned the authenticity of the copy of the January 17 order of dismissal or the complaint filed in his first suit both of which were attached to the defendants’ motion to dismiss. . The record does not reflect that Sheriff Lee was acting as a representative of the officers in the first suit. Again, the court’s statement that only Sheriff Lee was a defendant in the first suit indicates the individual nature of his presence. Furthermore, this case does not fit into any of the exceptions to the requirement that a person be a party to a prior decision before he may enjoy the res judicata effects of that decision. A possible argument might be made that the vicarious liability exception of section 51 of the Restatement (Second) of Judgments applies so that Officers Laura and Montecino could claim the benefit of the first dismissal. This argument however must fail since we would hold that Sheriff Lee is not vicariously liable under section 1983 for the acts of his deputies. See Baskin v. Parker, 602 F.2d 1205, 1208" }, { "docid": "23420496", "title": "", "text": "the insurance proceeds. The defendants moved to dismiss based on res judicata. The court denied the motion because there was no certified copy of the judgment in the record. Defendants filed a second motion to dismiss, omitting mention of res judicata because the district court had stated it would not consider such a motion. The court granted the motion, raising the issue of res judicata sua sponte. We review a dismissal based on res judicata de novo. RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1290 (5th Cir.1995). We apply federal law to determine the preclusive effect of a federal judgment, even if that judgment was based on state law. Id. A. Generally, res judicata is an affirmative defense that must be pleaded, not raised sua sponte. Fed.R.Civ.P. 8(c). We recognize two limited exceptions to this rule; both apply here. The first exception allows “[djismissal by the court sua sponte on res judicata grounds ... in the interest of judicial economy where both actions were brought before the same court.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980); accord United Home Rentals, Inc. v. Tex. Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983). Both actions were brought in the same federal district court. Further, like the judgments in Boone, the actions are “almost identical,” differing only in the defendants’ names. The parties do not dispute the facts, so remanding would add nothing to the record and would only consume judicial resources. The second exception holds that “where all of the relevant facts are contained in the record before us and all are uncontro-verted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invite our attention by technically correct and exact pleadings.” Am. Furniture Co. v. Int'l Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A Mar.1981). Here the facts are uncontested and the legal outcome unambiguous. Reversal would not lead to a different outcome. • Additionally, the usual concerns preventing a court from raising res judicata" }, { "docid": "10044504", "title": "", "text": "of operative facts. See Agrilectric Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663, 664-65 (5th Cir.1994). LAN/STV did not raise claim preclusion as ah affirmative’ defense as required by Fed. R. Civ. P. 8(c). While we may apply the doctrine of claim preclusion even when not properly pled before the district court, Jackson v. North Bank Towing Corp., 213 F.3d 885, 890 (5th Cir.2000), we decline to do so in this case. We are not satisfied that all of the relevant facts are before us, and are therefore unable to determine whether the elements of claim preclusion are satisfied, particularly with respect to the requirement of a common nucleus of operative facts. See Energy Dev. Corp. v. St. Martin, 296 F.3d 356, 363 (5th Cir.2002) (\"Our cases allowing consideration of res judi-cata or collateral estoppel on appeal do so only if ‘all of the relevant facts are contained in the record and are uncontroverted.' \"); see also Matter of Braniff Airways, 783 F.2d 1283, 1289 (5th Cir.1986) (stating that “[t]he party seeking to assert that an issue was already adjudicated upon bears the burden of proving that contention\" and that \"if reasonable doubt exists as to what was decided in the first action, the doctrine of res judicata should not be applied”). LAN/STV has not argued issue preclusion, and we decline to raise it sua sponte. See United Home Rentals, Inc. v. Texas Real Estate Comm’n, 716 F.2d 324, 331 (5th Cir.1983) (declining to raise collateral estoppel sua sponte). . Under the doctrine of sovereign immunity, the State and its governmental units are immune from tort liability unless immunity has been waived by the Texas Torts Claim Act. See Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). The Texas Tort Claims Act waives sovereign immunity only in a limited range of cases, and GLF concedes that none of these circumstances apply to this case. See Tex. Civ. Prac. a Rem.Code Ann. § 101.021 (Vernon 2005). Thus, sovereign immunity would insulate DART from liability in tort for the actions that form the basis of GLF’s" }, { "docid": "23171374", "title": "", "text": "S.Ct. 1712, 80 L.Ed.2d 185 (1984); see also Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971). In American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981), we noted as follows: We are cognizant that res judicata, as such, has not been specially pled. Fed. R.Civ.P. 8(c). In the posture of this case, however, where all of the relevant facts are contained in the record before us and all are uncontroverted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to the dispositive facts, simply because neither party has seen fit to invite our attention to the issue by technically correct and exact pleadings. We do so sua sponte. See also Nagle v. Lee, 807 F.2d 435, 438 n. 2 (5th Cir.1987); see generally Meza v. General Battery Corp., 908 F.2d 1262, 1274 (5th Cir.1990) (appellate court may affirm a summary judgment on grounds other than those relied upon by the district court when it finds in the record an adequate and independent basis for that result); Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1255 (5th Cir.1990) (same). In the instant case, the relevant facts are in the record before us and form an adequate basis for our invocation of res judicata. Federal law determines the res judicata effect of a prior federal court judgment. Meza, 908 F.2d at 1265; In re Air Crash at Dallas/Ft. Worth Airport, 861 F.2d 814, 816 (5th Cir.1988). Application of res judicata is proper only if the following four requirements are met: (1) the parties must be identical in the two suits; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same cause of action must be involved in both cases. Meza, 908 F.2d at 1265; Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990); Nilsen v. City of Moss Point, 701 F.2d 556, 559 (5th Cir.1983) (en banc). As to the second" }, { "docid": "17119961", "title": "", "text": "like Gahr, Bechtold “had representation of counsel at a hearing where he submitted documentary evidence, called witnesses, and cross-examined the witnesses for [the City].” Gahr, 796 F.2d at 1070. He appealed and argued to the Minnesota Court of Appeals, and petitioned for certiorari to the Minnesota Supreme Court. It is clear that Bechtold was afforded due process by the state proceedings: he had a full and fair opportunity to litigate the legitimacy of his termination there. As such, the issue preclusion test articulated in Willems is met, and we deem Bechtold’s age discrimination claims brought under the ADEA and the MHRA barred by the doctrine of issue preclusion. The issue of collateral estoppel was not raised in the district court or this court. Generally, we will consider an issue not raised or briefed in this court waived. Issues of res judicata and collateral estoppel are viewed as affirmative defenses under Fed.R.CivJP. 8(c), and must generally be pled or else they may be deemed waived. However, there exists an exception to this basic rule: Where the district court can be affirmed on different grounds, even though not raised, this court may exercise its discretion to do so. Zirinsky v. Sheehan, 413 F.2d 481, 484 n. 5 (8th Cir.1969). In addition, courts have traditionally attached additional importance to the application of res judicata principles. In eases involving a possible bar under res judicata, there is more at stake than relitigation between the parties. As we early observed, these also involve “the right of the appellate court to protect itself from litigation by a party who has already had his right finally determined in the district court,” and “the decent respect of the appellate court for the considered judgments of the district court arrived at after a fair hearing and upon due consideration.” Wilson v. United States, 166 F.2d 527, 529 (8th Cir.1948). Thus, an appellate court “may raise the issue of res judicata sua sponte ‘as a means to affirm the district court decision below.’” Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1172 (5th Cir.1992) (quoting United Home Rentals, Inc. v." }, { "docid": "17119963", "title": "", "text": "Texas Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983)); see also Robertson v. Interstate Sec. Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971) (“Res judicata was not pleaded or raised ... in federal district court_ We consider it here since the judgment below is entitled to be affirmed if there exists any ground to do so, even though not raised on appeal.”). The Fifth Circuit has allowed sua sponte consideration of res judicata to affirm a district court because where all of the relevant facts are contained in the record before us and all are uncontroverted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invite our attention to the issue by technically correct and exact pleadings. American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981). These considerations are applicable here: the record is sufficient to determine that principles of res judicata bar Bechtold’s claim. Thus we raise the issue sua sponte and affirm the judgment of the district court. JUDGMENT AFFIRMED. . The Honorable Paul A. Magnuson, Chief Judge, United States District Court, District of Minnesota. . Though this letter purports to terminate Bech-told, Burt only had the authority to recommend action to the Council; his decision was subject to ratification by the Council. . Bechtold argues, and we agree, that the Minnesota Court of Appeals explicitly deferred his § 1983 claim to the federal court. The court hollowed the meaning from that statement, however, when it went on to decide the substance of Bechtold's due process claims under federal constitutional principles. It should be clear that Bechtold's § 1983 claim is barred only because of the substantive constitutional claim underlying it. Thus, the City is correct when it asserts that \"in order for Bechtold to pursue his Section 1983 claim [in federal court], it must be based on something other than an alleged due process violation.” Appellee’s Br. at 16 n. 7-. . As we discuss, see infra n. 6," }, { "docid": "22966526", "title": "", "text": "we are bound by its dictates. Until overruled by the court en banc or the Supreme Court, Boone is the law of the circuit, and we are obligated to follow it. E.g., Washington v. Watkins, 655 F.2d 1346, 1354 n. 10 (5th Cir. 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982). In addition to the applicability of Boone, we also note that the defendants raised their res judicata defense in their motion to dismiss Nagle’s second suit. Such a motion has been held sufficient to raise the plea of res judicata. American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981); see also Scott v. Kuhlmann, 746 F.2d 1377,1378 (9th Cir.1984) (although res judicata had been asserted by motion to dismiss rather than answer, a duty exists to affirm district court’s judgment on any ground fairly supported by the record); Jones v. Gann, 703 F.2d 513, 515-16 (11th Cir.1983) (same); Moch v. East Baton Rouge Parish School District, 548 F.2d 594, 596 n. 3 (5th Cir.) (same), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977). For these reasons, we conclude that the district court properly reached the defendants’ defense of res judicata.. IV. Nagle next complains that the doctrine of res judicata should not have been applied to bar his second suit. He maintains that the first suit was not res judicata to the second because (1) the first dismissal was not a final order for purposes of res judicata; (2) the first dismissal, even if final, was not with prejudice; (3) the dismissal in the first suit, even if final and with prejudice, was an abuse of discretion; and (4) the dismissal of his second suit on the basis of res judicata is inequitable under Federal Rules of Civil Procedure. A. Before addressing Nagle’s specific complaints, we note the general rules for res judicata law in this circuit. We stated in Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir.1975): For a prior judgment to bar a subsequent action, it is firmly established (1) that the" }, { "docid": "23420497", "title": "", "text": "436 (5th Cir.1980); accord United Home Rentals, Inc. v. Tex. Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983). Both actions were brought in the same federal district court. Further, like the judgments in Boone, the actions are “almost identical,” differing only in the defendants’ names. The parties do not dispute the facts, so remanding would add nothing to the record and would only consume judicial resources. The second exception holds that “where all of the relevant facts are contained in the record before us and all are uncontro-verted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invite our attention by technically correct and exact pleadings.” Am. Furniture Co. v. Int'l Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A Mar.1981). Here the facts are uncontested and the legal outcome unambiguous. Reversal would not lead to a different outcome. • Additionally, the usual concerns preventing a court from raising res judicata sua sponte do not apply. Mowbray “can claim no surprise or prejudice.” Id. She certainly had notice of the prior judgment; she had litigated it just a few months earlier. Nor has she been denied “ ‘the chance to argue ... why the imposition of an estoppel would be inappropriate.’ ” Id. (quoting Blonder-Tongue Labs. v. Univ. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971)). James and Margo Mowbray had filed an earlier motion to dismiss based on res judicata, which Mow-bray had ample opportunity to answer. B. Thus concluding that the district court did not err in raising the issue, we address it on the merits. In American Furniture, we set forth the requirements for a res judicata defense: “(1) that the prior judgment must have been rendered by a court of competent jurisdiction; (2) that there must have been a final judgment on the merits; (3) that the parties, or those in privity with them, must be identical in both suits; and (4) that the same cause of action" }, { "docid": "22966540", "title": "", "text": "inequitable result contrary to the Federal Rules of Civil Procedure. He quotes from Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962): “[it is] contrary to the spirit of the [rules] for decisions on the merits to be avoided on the basis of ... mere technicalities____” He also invokes Kennerly v. Aro, Inc., 447 F.Supp. 1083 (E.D.Tenn.1977): “the rules are designed to facilitate a proper decision on the merits____” This doctrine was applied in La Societe Anonyme des Parfums LeGalion v. Jean Patou, Inc., 495 F.2d 1265 (2d Cir.1974). The compelling factors in that case were that the judge in the second case was under the impression that the prior dismissal had been without prejudice, the plaintiff’s claim was based on defendant’s course of conduct rather than on an isolated act, and the relief sought was declaratory judgment. None of these factors are present in Nagle’s case; therefore, we do not believe the dismissal of Nagle’s second action against Sheriff Lee is an inequitable result. V. For the above reasons, the district court’s dismissal of Nagle’s action against Officers Laura and Montecino is REVERSED and the cause REMANDED for further proceedings; the district court’s dismissal of Nagle’s action against Sheriff Lee is AFFIRMED. REVERSED AND REMANDED IN PART; AFFIRMED IN PART. E. Nagle finally contends that the district court’s dismissal of his first suit and the subsequent res judicata holding in favor of Sheriff Lee in this second suit constitute an . Nagle filed a memorandum in opposition to the motion in which he argued his suit had not prescribed; he did not, however, address or oppose the res judicata defense. . The second exception allows a court to raise the res judicata defense on its own when all the relevant data and legal records are before the court and the demands of comity, continuity in the law, and essential justice mandate judicial invocation of the principles of res judicata. See American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir. 1981). . At no time has Nagle questioned the authenticity" }, { "docid": "2744281", "title": "", "text": "can conceive of no reason for such judicial volleyball. Stanton, who argues the question of res judicata forcefully in his reply brief, Reply Br. at 6-9, suggests no way in which our resolution of the issue on appeal would prejudice him. And while res judicata exists in part to shield parties from duplicative and vexatious litigation, the interests that courts protect are also often their own— or, more precisely, those of society. “ ‘Courts today are having difficulty giving a litigant one day in court. To allow that litigant a second day is a luxury that cannot be afforded.’ ” National Treasury Employees Union v. I.R.S., 765 F.2d 1174, 1177 (D.C.Cir.1985) (quoting C. Wright, Law of Federal Courts 678 (4th ed.1983)). As res judicata belongs to courts as well as to litigants, even a party’s forfeiture of the right to assert it — which has not happened here because the defendant remains free to file an answer — does not destroy a court’s ability to consider the issue sua sponte. See Nixon v. United States, 978 F.2d 1269, 1297 (D.C.Cir.1992) (Henderson, J., concurring); cf. Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir.1997) (appellate court may raise res judicata sua sponte to affirm district court); Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir.1992) (same). In the circumstances of this ease, where there is no prejudice to the plaintiff, no forfeiture has yet occurred, the relevant facts stand uncontroverted in the record before us, and denial would only engender delay, we are willing to consider the defense for the first time on appeal. We give judgments of other courts the same preclusive effect as would the issuing court — in this case, the D.C. Court of Appeals. See 28 U.S.C. § 1738; Matsushita Elec. Industrial Co. v. Epstein, — U.S. -, -, 116 S.Ct. 873, 877, 134 L.Ed.2d 6 (1996). The DCCA (as litigant before us) suggests that in its adjudication of Stanton’s reinstatement petitions, it has already declared his current constitutional claims barred by res judicata. The decisions do not in fact do so. The" }, { "docid": "16739468", "title": "", "text": "if both parties concede that the federal defense is the only question truly at issue.\"). . Strong twice raised the state-court judgment as an alternative basis on which to affirm the district court's order dismissing the FAA petition in this case. (See Suggestion of Mootness by Appellee (\"Strong's Mootness Br.”), filed Oct. 17, 2005; Appellee’s Supplemental Brief Regarding the Impact of Vaden v. Discover Bank (“Strong’s Vaden Br.”), filed June 22, 2009, at 12.) Strong said that \"[Cash America's] ability to compel arbitration in a state or federal forum against [Strong] has been mooted by the State Court's order striking this defense.” (Strong’s Mootness Br. at 3.) Although Strong failed to use the words “res judicata” or \"collateral estoppel,” we nonetheless find that Strong has sufficiently raised the issue of preclusion such that this Court may address it. We note in passing that the Supreme Court of Georgia has similarly found that a party sufficiently raised a preclusion defense even without specifically articulating it as either res judicata or collateral estoppel. See Boozer v. Higdon, 252 Ga. 276, 313 S.E.2d 100, 102 & n. 1 (1984) (holding that a \"probate court order was sufficient evidence to support Boozer’s defense, when construed as a plea of collateral estoppel,” even though “Boozer’s defensive pleading did not specifically enumerate either res judicata or collateral estoppel as its grounds, but merely stated that ‘the matter [has been] formally adjudicated in the Probate Court of Cobb County ...' \"). And indeed, even if the parties had not raised the issue, this Court may consider the preclusive effect of a prior judgment sua sponte. See Am. Furniture Co. v. Int’l Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A Mar.1981) (\"We are cognizant that res judicata, as such, has not been specially pled. In the posture of this case, however, where all of the relevant facts are contained in the record before us and all are uncontroverted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has" }, { "docid": "17119962", "title": "", "text": "district court can be affirmed on different grounds, even though not raised, this court may exercise its discretion to do so. Zirinsky v. Sheehan, 413 F.2d 481, 484 n. 5 (8th Cir.1969). In addition, courts have traditionally attached additional importance to the application of res judicata principles. In eases involving a possible bar under res judicata, there is more at stake than relitigation between the parties. As we early observed, these also involve “the right of the appellate court to protect itself from litigation by a party who has already had his right finally determined in the district court,” and “the decent respect of the appellate court for the considered judgments of the district court arrived at after a fair hearing and upon due consideration.” Wilson v. United States, 166 F.2d 527, 529 (8th Cir.1948). Thus, an appellate court “may raise the issue of res judicata sua sponte ‘as a means to affirm the district court decision below.’” Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1172 (5th Cir.1992) (quoting United Home Rentals, Inc. v. Texas Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983)); see also Robertson v. Interstate Sec. Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971) (“Res judicata was not pleaded or raised ... in federal district court_ We consider it here since the judgment below is entitled to be affirmed if there exists any ground to do so, even though not raised on appeal.”). The Fifth Circuit has allowed sua sponte consideration of res judicata to affirm a district court because where all of the relevant facts are contained in the record before us and all are uncontroverted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invite our attention to the issue by technically correct and exact pleadings. American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981). These considerations are applicable here: the record is sufficient to determine that principles of res judicata bar Bechtold’s claim. Thus we" } ]

[ { "docid": "698350", "title": "", "text": "resolved promptly suggests that defendants’ motion for transfer should be granted. The action pending in the Eastern District of Virginia, involving the same Walther trademark and substantially the same litigants, is already set for trial on March 10, 1986 and it appears that the Virginia Court has already ruled on dispositive motions in that action. See supra footnote 3. A trial date in this district on the other hand, given this district’s congested docket, would be at least six months away. This being the case, there simply is no just reason for maintaining a parallel action in this district. The parties’ interest in an expeditious resolution of the action is certainly a proper although not dispositive factor for the Court to consider. See A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439, 445 (2d Cir.1966); McCrystal v. Barnwell County, Southern Carolina, 422 F.Supp. 219, 225 (S.D.N.Y.1976). Indeed, plaintiffs have emphasized the particular importance of a prompt ruling in this case by filing a motion for a preliminary injunction seeking inter alia an order barring Interarms from advertising Interarms’ pistols as being the only genuine “Walther” pistols. Finally, the Court notes that while plaintiffs’ choice of forum is ordinarily entitled to considerable weight, where, as here, the transactions underlying the cause of action have no material connection to the chosen forum, plaintiffs’ choice of forum becomes less relevant to a transfer motion. See Foster v. Litton Industries, Inc., 431 F.Supp. 86, 87 (S.D.N.Y.1977). All of the material transactions in this case occurred either in Europe or in Virginia. None occurred in New York. The only connection plaintiffs claim this action has with this forum is that substantially more of defendants’ goods with the disputed Walther marks are sold in New York than in Virginia. Defendants goods are sold, however, in many states and this consideration does not override the other factors favoring transfer. Since a transfer will greatly increase the convenience to at least one party and some of the material witnesses, without adding to the inconvenience of the other parties or witnesses, and because a transfer will be" } ]

[ { "docid": "16106717", "title": "", "text": "are located within the confínes of the Western District of Pennsylvania at Medrad’s headquarters in Indi-anola, Pennsylvania. This collection of documents includes all documents related to the previous manufacture and sale of the accused products. It also includes all documents generated by Medrad with respect to the products on a going forward basis. After the acquisition activities are complete, all of the tangible manufacturing equipment and items will be located in Indianola, Pennsylvania as well. Thus, this factor favors transfer. 4. Plaintiff’s Choice Of Forum The plaintiffs choice of forum, while customarily a very significant factor in a 1404(a) analysis, is not entitled to the weight it is generally accorded when the forum chosen has no material connection with the action. See, e.g., ZPC 2000, Inc. v. SCA Group, Inc., 86 F.Supp.2d 274, 280 (S.D.N.Y.2000); Pyramyd Stone Int’lern. Corp. v. Crosman Corp., No. 95 Civ. 6665, 1997 WL 66778, at *17 (S.D.N.Y. Feb.18, 1997). This is particularly the case where, as here, the plaintiff has chosen a foreign forum. See ZPC 2000, 86 F.Supp.2d at 280; Coker v. Bank of America, 984 F.Supp. 757, 766 (S.D.N.Y.1997). The sole connection between this action and the Southern District of New York is the sale of a minute percentage of the accused products and the location of plaintiffs counsel. There is “such a tenuous connection between the plaintiffs claims and the Southern District of New York, [that] the plaintiffs selection of this forum has an artificial quality that entitles a court to give it less weight.” See Amersham Pharmacia Biotech, Inc. v. Perkin-Elmer Corp., 11 F.Supp.2d 729, 730 (S.D.N.Y.1998) (transferring patent infringement case out of Southern District of New York where .only connection to forum was incorporation of the defendant and sales of 112 out of 3,000 of accused products) (citation omitted). In addition, this is a foreign forum, as Invivo’s home forum is located in Florida. Under these circumstances, the plaintiffs choice of forum does not militate against transfer. 5. Familiarity With The Applicable Law Federal law governs the dispute between the parties in this case because it relates to allegations of" }, { "docid": "4314264", "title": "", "text": "The parties’ dispute centers principally around the third factor. The third element, the convenience and fairness of transfer under § 1404(a), is determined on a case by case basis by looking at the private interests of the parties and the public interest of the court. Coffey, 796 F.2d at 219. Private interests include: (1) plaintiffs choice of forum, (2) the situs of material events, (3) the relative ease of access to sources of proof in each forum including the court’s power to compel the appearance of unwilling witnesses at trial and the costs of obtaining the attendance of witnesses, (4) convenience to the parties—specifically, their respective residences and abilities to bear the expense of trial in a particular forum. Von Holdt v. Husky Injection Molding Systems, Ltd., 887 F.Supp. 185, 188 (N.D.Ill. 1995). Public interest factors include the court’s familiarity with applicable law and the desirability of resolving controversies in their locale. Id. A. Plaintiffs Choice of Forum Although Anchor filed suit in the Northern District, plaintiffs choice of forum has diminished in significance since the enactment of § 1404(a). Ardco, Inc. v. Page, Ricker, Felson Marketing, 1992 WL 246862, at *6 (N.D.Ill. Sept.23, 1992) (citing Ratner v. Hecht, 621 F.Supp. 378, 382 (N.D.Ill.1985)). Where, as here, the plaintiff is not a resident of the forum district, this factor is merely another factor in the mix and is given no additional weight. H.B. Sherman Mfg. Co. v. Rain Bird Nat’l Sales Corp., 979 F.Supp. 627, 630 (N.D.Ill.1997). The weight accorded plaintiffs choice of forum is further lessened if the chosen forum lacks any significant connection to the claim. Greene Mfg. Co. v. Marquette Tool & Die Co., 1998 WL 395155, at *2 (N.D.Ill. July 9, 1998). Sales alone are insufficient to establish a substantial connection to the forum if the defendant’s goods are sold in many states. Id. In this case, the Northern District has relatively weak connections with the operative facts giving rise to the claim, as only a small percentage of the alleged infringing items were sold here. The majority of the operative events surrounding the alleged infringement" }, { "docid": "19894131", "title": "", "text": "transfer under Section 1404(a). The factors which should influence a court in deciding whether or not to transfer under Section 1404(a) include the place where the operative events occurred, the convenience of parties and witnesses, the location of documents, the relative ease of access to the sources of proof, the availability of process to compel attendance of unwilling witnesses, the plaintiffs choice of forum, a forum’s familiarity with the governing law, trial efficiency and the interests of justice. Boreal Laser Inc. v. Coherent Inc., 22 U.S.P.Q.2d 1559 (S.D.N.Y.1992); Gibbs & Hill, Inc. v. Harbert Int’l., Inc., 745 F.Supp. 993, 996 (S.D.N.Y.1990); Don King Prods., Inc. v. Douglas, 735 F.Supp. 522, 533 (S.D.N.Y.1990); Christina Canada, Inc. v. Wior Corp., 702 F.Supp. at 463. Location of the Parties The convenience of parties and witnesses is considered “the essential criteria under the venue statute,” First City Federal Savings Bank v. Register, 677 F.Supp. 236, 237 (S.D.N.Y.1988), and “the most significant factor,” Nieves v. American Airlines, 700 F.Supp. 769, 773 (S.D.N.Y.1988). Cento argues that the convenience of the parties and witnesses in this case parallels the facts in Christina, in which this Court refused a motion to transfer to California an action for patent, trademark, and unfair competition between a Canadian and a California corporation. While this case has many elements in common'with Christina, other elements differ too greatly and render the analysis in that case inapplicable to the one at bar. . The heart of this controversy is OroAmerica’s'allegation that Cento does not have a bona fide sales office in New York. OroAmerica alleges that “the only apparent reason for Cento’s counsel’s,selection of this district is that Cento’s. counsel’s offices are located here, a factor of relatively little con sequence.” The convenience of counsel is of relatively little consequence, Matra et Manurhian, 628 F.Supp. 1532, 1535 n. 5 (SJD.N.Y.1986), but Cento does not base its argument on the convenience of its counsel and has alleged more contacts with New York than the location of his office. Although Cento alleges that three of the employees of Cento Group work out of the office on" }, { "docid": "21244759", "title": "", "text": "minimal consideration taken together with the results of balancing all the relevant factors ... militates that the actions remain in the district.” Id. at 717. In Beres v. Thomson McKinnon Securities, Inc., the court did note that “courts have ... held that where an action is brought pursuant to the Securities and Exchange Act, whose venue provisions allow plaintiff an extremely wide choice of forums, ‘the fact that plaintiff seeks to represent a widely dispersed class takes on less significance than might otherwise be the case.’ ” No. 85 Civ. 6674, 1987 WL 16977, at *4 (S.D.N.Y. Sept. 10, 1987) (quoting Somerville v. Major Exploration, Inc., 576 F.Supp. 902, 908 (S.D.N.Y.1983)). Still, in that case, the court denied the transfer motion where the plaintiff and several defendants opposed the motion. Finally, Coleman v. Global Ultimacc Systems, Inc., STC, No. 85 Civ. 8467, 1986 WL 5804 (S.D.N.Y. May 16,1986), did not involve a class action and thus has no relevance to the question at hand. See id. at *2 (noting in a case where the five plaintiffs were located in the transferor forum that “[t]he deference given plaintiffs’ choice of forum, while perhaps less weighty in shareholder derivative suits, has full .force in securities action brought by individual plaintiffs” (emphasis added)). In the instant case, even if Levine’s choice of forum were entitled to substantial defer ence, the factors discussed above weigh sufficiently in favor of a transfer to override any such preference. A denial of transfer will not be premised* solely on choice of forum. In isolation, given its nature as a class action brought under the federal securities law, this factor weighs moderately in favor of Levine. 8. Trial Efficiency and the Interests of Justice Beyond these particular concerns, however, a district court has discretion to transfer an action to where the trial would best be expedient and just. See Red Bull Assoc. v. Best Western Int'l Inc., 862 F.2d 963, 967 (2d Cir.1988). “The relevant docket conditions of the transferor and transferee courts[,] [for example,] are relevant” to the transfer determination. Eichenholtz, 677 F.Supp. at 202. According to" }, { "docid": "404045", "title": "", "text": "of meeting this burden. They argue that the parties will be substantially inconvenienced by a venue in this District. They point to their anticipated addition of third parties— Saturday, Crewe, and Windswept. On balance, this argument fads to persuade. Saturday is a New York corporation active and in good standing. Crewe is one of Saturday’s principal officers and subject to the long-arm jurisdiction of New York. Windswept is a large publishing company with regular and substantial business contracts with New York. In any event, Moving Defendants have failed to demonstrate that the joinder of these parties is required. Moving Defendants argue further that Bennett’s and Valli’s residences in California add to the inconvenience. Yet Gaudio resides in Tennessee, which is closer to this District than to the Central District of California. Valli’s affidavit indicates that he travels frequently to New York, and it is difficult to believe that travel here for the purposes of this action would pose an undue hardship. EMI, which opposes this motion, is located in New York. Daniel Crewe is alleged to be in New England. Several other non-party witnesses are located in New York, and many may not be subject to the jurisdiction of the District Court in the Central District of California. The operative facts central to Plaintiffs’ claims in this case occurred largely in New York. The negotiation, execution, and performance of relevant contracts occurred in New York, as did the prior litigations involving the rights in issue in the action. There is, therefore, a material connection between Plaintiffs’ contract-related and copyright renewal-related claims on the one hand and the New York forum on the other. See Boreal Laser Inc. v. Coherent, Inc., 22 U.S.P.Q.2d 1559, 1560, 1992 WL 9375 (S.D.N.Y.1992). The core evidentiary material respecting the claims against the EMI Defendants, including both the pertinent financial books and records and the critical testimonial witnesses are located in New York. New York, therefore, is the place where there will be most efficient access to those documents and witnesses — factors that strongly militate in favor of litigating this case in New York. See" }, { "docid": "21859401", "title": "", "text": "Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir.1952); Sandvik, 724 F.Supp. at 307; Rutherford v. Sherburne Corp., 616 F.Supp. 1456, 1463 (D.N.J.1985). Cf. Lacey v. Cessna Aircraft Co., 932 F.2d 170 (3d Cir.), reh’g denied en banc (3d Cir.1991) [hereinafter Lacey II]; Mediterranean Golf, Inc. v. Hirsh, 783 F.Supp. 835, 840-41 (D.N.J. 1991). . Tn patent infringement actions, \"as a general rule, the preferred forum is that which is the center of gravity of the accused activity.\" S.C. Johnson & Sons, Inc. v. Gillette Co., 571 F.Supp. 1185, 1188 (N.D.Ill.1983) (emphasis added); accord EMS-American Grilon, Inc. v. DSM Resins U.S., Inc., 15 U.S.P.Q.2d 1472, 1475, 1989 WL 230919 (D.N.J.1989); Levinson v. Regal Ware, Inc., 14 U.S.P.Q.2d 1064, 1065, 1989 WL 205724 (D.N.J.1989); Clopay, 527 F.Supp. at 736; Stora Kopparberg Corp. v. Crucible, Inc., 184 U.S.P.Q. 590, 591 (D.N.J.1974). In finding that \"center of gravity,\" a district court \"ought to be as close as possible to the milieu of the infringing device and the hub of activity centered around its production.\" S.C. Johnson, 571 F.Supp, at 1188 (em phasis added). Appropriate considerations include the location of a product's development, testing, research and production. Id. Also relevant is the place where marketing and sales decisions were made, rather than where limited sales activity has occurred. Id. . Moreover, Ricoh has failed to submit any factual affidavits which indicate that research and/or development of the Gas Detector — the product allegedly infringed by Honeywell — occurred in New Jersey. This being the case, and given that (1) Mitsutera Kimura, the inventor of the Gas Detector, is a Japanese citizen and (2) Ricoh is a Japanese corporation, it is reasonable to assume that research and development of the Gas Detector occurred in Japan. . Although Ricoh mentions Honeywell’s Micro Switch Division sales office in New Jersey, it does not argue (nor does it appear) that any design, development, manufacturing or marketing decisions were made at this New Jersey office with regard to Honeywell’s allegedly infringing sensor products. See Opp. Brief at 3-4. Ricoh does argue that New Jersey is the proper forum" }, { "docid": "3629237", "title": "", "text": "of Mark R. Winston, counsel for K & L, Steven Suddaby, Statistician of the United States Courts based in the Administrative Office in Washington, D.C., informed him that, as of March of 1989, the average docket per judge in the Southern District of New York was 502.6 cases while the average docket per judge in the Western District of Pennsylvania was 315.9 cases. While it is impossible to tell from these numbers how long it would take for any particular case to come to trial in either district, this factor favors transfer to the Western District of Pennsylvania. III. Plaintiffs Choice of Forum Generally, the plaintiff’s choice of forum weighs heavily against transfer. A. Olinick & Sons v. Dempster, 365 F.2d 439, 444 (2d Cir.1966). Defendants argue that because plaintiff sues in a representative capacity, its choice of forum carries less weight. In shareholder derivative suits and other similar types of class actions, the accidental residence of the named plaintiff is discounted in weighing the transfer factors. Koster v. American Lumbermens Mutual Casualty Co., 330 U.S. 518, 524-525, 67 S.Ct. 828, 831-32, 91 L.Ed. 1067 (1946). Here, under the terms of the trust indentures, the indenture trustee is the only authorized plaintiff, a representative status somewhat different from the one discussed in Koster. Yet, Schroder’s role as plaintiff is not quite the same as that of a wronged individual, the traditional plaintiff whose choice of forum is given great weight. The connection of these cases to New York is completely independent of Schroder. Schroder succeeded Mellon as indenture trustee after all of the transactions at issue had been completed and most of the significant events had occurred. It is entirely fortuitous that some of the controversial events took place in the same forum in which the successor trustee resides. No testimony is needed from Schroder because none of Schroder’s personnel witnessed the facts in dispute. After Schroder’s choice of forum is given due weight, the balance tips in favor of transfer to the Western District of Pennsylvania. CONCLUSION For the foregoing reasons, defendants’ motions are granted and IBJ Schroder Bank" }, { "docid": "21859400", "title": "", "text": "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). . Although the Gulf Oil case involved a motion to dismiss under the doctrine of forum non con-veniens, courts routinely look to the Gulf Oil factors for guidance in section 1404(a) cases. See Sandvik, 724 F.Supp. at 308 n. 8. Similarly, the Third Circuit's decisions in Lony I, Lony v. E.I. Du Pont De Nemours & Co., 935 F.2d 604, 609 (3d Cir.1991) [hereinafter Lony II] and Lacey v. Cessna Aircraft Co., 862 F.2d 38 (3d Cir.1988) [hereinafter Lacey I], which involved motions to dismiss under the doctrine of forum non conveniens, are relevant to a motion to transfer under section 1404. Significantly, Federal courts have broader discretion to transfer an action under section 1404(a), than to dismiss under the common law doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir.1952); Sandvik, 724 F.Supp. at 307; Rutherford v. Sherburne Corp., 616 F.Supp. 1456, 1463 (D.N.J.1985). Cf. Lacey v. Cessna Aircraft Co., 932 F.2d 170 (3d Cir.), reh’g denied en banc (3d Cir.1991) [hereinafter Lacey II]; Mediterranean Golf, Inc. v. Hirsh, 783 F.Supp. 835, 840-41 (D.N.J. 1991). . Tn patent infringement actions, \"as a general rule, the preferred forum is that which is the center of gravity of the accused activity.\" S.C. Johnson & Sons, Inc. v. Gillette Co., 571 F.Supp. 1185, 1188 (N.D.Ill.1983) (emphasis added); accord EMS-American Grilon, Inc. v. DSM Resins U.S., Inc., 15 U.S.P.Q.2d 1472, 1475, 1989 WL 230919 (D.N.J.1989); Levinson v. Regal Ware, Inc., 14 U.S.P.Q.2d 1064, 1065, 1989 WL 205724 (D.N.J.1989); Clopay, 527 F.Supp. at 736; Stora Kopparberg Corp. v. Crucible, Inc., 184 U.S.P.Q. 590, 591 (D.N.J.1974). In finding that \"center of gravity,\" a district court \"ought to be as close as possible to the milieu of the infringing device and the hub of activity centered around its production.\" S.C. Johnson, 571" }, { "docid": "21244750", "title": "", "text": "cases when the principal events occurred and the principal witnesses are located in another district. See Viacom Int’l, Inc. v. Melvin Simon Prod., 774 F.Supp. 858, 867 (S.D.N.Y. 1991) (citing Computer Horizons Corp. v. Knauer, 483 F.Supp. 1272 (S.D.N.Y.1980)). This factor also supports the transfer to Michigan. Aside from the sale and purchase of Nem-atron common stock in this district, the principal events underlying this dispute occurred in Michigan. The GM Contract was entered in Michigan. The contract was administered in Michigan. Nematron’s 1996 and 1997 financial statements were prepared in Michigan. The due diligence for the June 5, 1996 offering occurred in Michigan. Finally, each of the independent audits transpired in Michigan. Michigan is the locus of operative facts in this lawsuit. Levine correctly contends that Defendants could not have perpetrated their alleged national scheme to defraud Nematron shareholders without actually selling the Nema-tron shares in this district, among others. However, that the shares were directed to New York does not make it a forum which has a significant contact with the operative facts. “Misrepresentations and omissions are deemed to ‘occur’ in the district where they are transmitted or withheld, not where they are received.” Purcell Graham, Inc. v. National Bank of Detroit, No. 93 Civ. 8786, 1994 WL 584550, at *4 (S.D.N.Y. Oct. 24, 1994) (citations omitted) (finding transfer appropriate where material acts and omissions underlying plaintiffs complaint occurred in transferee district); see Bortel v. JHM Mortgage Sec. L.P., No. C-94-20530, 1995 WL 7953 (N.D.Cal.Jan.5, 1995) (transferring securities fraud class action to Virginia because it was the factual center of the case, even though fourteen of the named plaintiffs resided in California); IBJ Schroder Bank & Trust Co. v. Mellon Bank, N.A., 730 F.Supp. 1278, 1281 (S.D.N.Y.1990) (finding transfer appropriate where misleading documents issued by defendant were prepared in transferee forum). Michigan bears a much more intimate connection to the events underpinning this case than does New York, which has no greater connection than any other district in which any potential class member resides. See Job Haines Home for the Aged v. Young, 936 F.Supp. 223, 230 (D.N.J.1996)" }, { "docid": "404046", "title": "", "text": "to be in New England. Several other non-party witnesses are located in New York, and many may not be subject to the jurisdiction of the District Court in the Central District of California. The operative facts central to Plaintiffs’ claims in this case occurred largely in New York. The negotiation, execution, and performance of relevant contracts occurred in New York, as did the prior litigations involving the rights in issue in the action. There is, therefore, a material connection between Plaintiffs’ contract-related and copyright renewal-related claims on the one hand and the New York forum on the other. See Boreal Laser Inc. v. Coherent, Inc., 22 U.S.P.Q.2d 1559, 1560, 1992 WL 9375 (S.D.N.Y.1992). The core evidentiary material respecting the claims against the EMI Defendants, including both the pertinent financial books and records and the critical testimonial witnesses are located in New York. New York, therefore, is the place where there will be most efficient access to those documents and witnesses — factors that strongly militate in favor of litigating this case in New York. See Saminsky v. Occidental Petroleum Corp., 373 F.Supp. 257, 260 (S.D.N.Y.1974). In addition to the convenience to parties and witnesses of venue in New York, the fact that many of the claims may be governed by New York law is a factor tilting the proper choice of venue to New York. It is appropriate for a case to be tried in the forum at home with the governing law, Ferens v. John Deere Co., 494 U.S. 516, 530, 110 S.Ct. 1274, 1283, 108 L.Ed.2d 443 (1990); 15 Wright, Miller & Cooper § 3851 at 415 (1986). A transfer should not be granted “absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court____” Star Lines, Ltd. v. Puerto Rico Maritime Shipping Auth., 442 F.Supp. 1201, 1207 (S.D.N.Y.1978). Moving Defendants have failed to make such a showing. Conclusion The motion to dismiss for lack of jurisdiction is granted as to Seasons Four and denied as to Valli, Gaudio, and Bennett. The motion to dismiss for lack" }, { "docid": "16381578", "title": "", "text": "neither the transferee nor the transferor court is more or less familiar with the governing law. Thus, this factor is neutral. h. Plaintiffs’ Choice of Forum A plaintiffs choice of forum generally is entitled considerable weight — particularly when the plaintiff is a resident of the forum district — and should not be disturbed unless the balance of several factors is strongly in favor of defendant. Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203, 210 (S.D.N.Y.1998). The court’s emphasis on a plaintiffs choice of forum diminishes, though, where “... the operative facts upon which the litigation is brought bear little material connection to the chosen forum.” Nieves, 700 F.Supp. at 772; see also Berman, 30 F.Supp.2d at 659. In this case, plaintiffs chose to litigate in the Southern District of New York. However, because only one of the two plaintiffs resides in this district, and the locus of operative facts lay elsewhere, plaintiffs’ choice of forum is “entitled to little deference.” Iyalla v. TRT Holdings, Inc., 2005 WL 1765707 (S.D.N.Y. July 25, 2005); see also Elam Electroluminescent Industries, Ltd., 2005 WL 1538211. Moreover, though plaintiff Fuji U.S.A. is a New York corporation, it chose to litigate the Lexar Action in the Northern District of California, suggesting that it has willingly subjected itself to adjudication of patent infringement matters in that district. Therefore, plaintiffs’ forum choice, while important, does not preclude transfer in this case. i.Interests of Justice Finally, the overall interests of justice, including considerations of judicial economy, weigh in favor of transfer, albeit slightly. “It is well established that the existence of a related action pending in the transferee court weighs heavily towards transfer.” APA Excelsior III L.P. v. Premiere Technologies, Inc., 49 F.Supp.2d 664, 668 (S.D.N.Y.1999); see also Berman, 30 F.Supp.2d at 660; Amersham Pharmacia Biotech, Inc. v. Perkin-Elmer Corp., 11 F.Supp.2d 729, 730 (S.D.N.Y.1998). Litigating related claims in the same tribunal allows for more efficient pretrial discovery, avoids duplicitous litigation, prevents inconsistent results, and saves times and expense for both parties and witnesses. Id. The patents-in-suit in this case are not the same as" }, { "docid": "4314263", "title": "", "text": "U.S.C. § 1404(a). Thus, transfer of venue is proper when the moving party demonstrates that (1) venue is proper in the transferor district, (2) venue and jurisdiction are proper in the transferee district, and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses and the interest of justice. Avery Dennison Corp. v. FLEXcon Co., 42 U.S.P.Q.2d 1087, 1088, 1997 WL 106252 (N.D.Ill.1997). The first two elements, determining proper venue in patent infringement cases, are controlled by 28 U.S.C. § 1400(b). This section states that “any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). The parties do not dispute that venue is proper in the Northern District, because R & D delivered three shipments of the allegedly infringing masonry blocks to distributors residing in this district. Similarly, venue is proper in the Central District because R & D resides there. The parties’ dispute centers principally around the third factor. The third element, the convenience and fairness of transfer under § 1404(a), is determined on a case by case basis by looking at the private interests of the parties and the public interest of the court. Coffey, 796 F.2d at 219. Private interests include: (1) plaintiffs choice of forum, (2) the situs of material events, (3) the relative ease of access to sources of proof in each forum including the court’s power to compel the appearance of unwilling witnesses at trial and the costs of obtaining the attendance of witnesses, (4) convenience to the parties—specifically, their respective residences and abilities to bear the expense of trial in a particular forum. Von Holdt v. Husky Injection Molding Systems, Ltd., 887 F.Supp. 185, 188 (N.D.Ill. 1995). Public interest factors include the court’s familiarity with applicable law and the desirability of resolving controversies in their locale. Id. A. Plaintiffs Choice of Forum Although Anchor filed suit in the Northern District, plaintiffs choice of forum has diminished in significance since" }, { "docid": "4314265", "title": "", "text": "the enactment of § 1404(a). Ardco, Inc. v. Page, Ricker, Felson Marketing, 1992 WL 246862, at *6 (N.D.Ill. Sept.23, 1992) (citing Ratner v. Hecht, 621 F.Supp. 378, 382 (N.D.Ill.1985)). Where, as here, the plaintiff is not a resident of the forum district, this factor is merely another factor in the mix and is given no additional weight. H.B. Sherman Mfg. Co. v. Rain Bird Nat’l Sales Corp., 979 F.Supp. 627, 630 (N.D.Ill.1997). The weight accorded plaintiffs choice of forum is further lessened if the chosen forum lacks any significant connection to the claim. Greene Mfg. Co. v. Marquette Tool & Die Co., 1998 WL 395155, at *2 (N.D.Ill. July 9, 1998). Sales alone are insufficient to establish a substantial connection to the forum if the defendant’s goods are sold in many states. Id. In this case, the Northern District has relatively weak connections with the operative facts giving rise to the claim, as only a small percentage of the alleged infringing items were sold here. The majority of the operative events surrounding the alleged infringement occurred in the Central District where R & D designed, manufactured, stored and sold the masonry blocks. Accordingly, little weight is afforded to Anchor’s choice of forum in this case. B. Situs of Material Events We find that all of the central facts surrounding this patent infringement dispute relate to activities which took place in the Central District, not the Northern District. R & D designed, manufactured, stored, and sold the alleged infringing masonry blocks in Rock Island. Conversely, only limited sales activities actually occurred in this district. Because there is little connection between this district and the litigation, the situs of material events factor favors transfer to the Central District. C.Convenience of the Witnesses In assessing the convenience of the witnesses, we must determine the relative ease of access to sources of proof in each forum. Anchor argues that the Northern District is more convenient for its key witnesses because several of its witnesses are employees of Northfield Block Company (“Northfield”), an Anchor licensee, which is located in this district. Anchor also contends that" }, { "docid": "21244751", "title": "", "text": "“Misrepresentations and omissions are deemed to ‘occur’ in the district where they are transmitted or withheld, not where they are received.” Purcell Graham, Inc. v. National Bank of Detroit, No. 93 Civ. 8786, 1994 WL 584550, at *4 (S.D.N.Y. Oct. 24, 1994) (citations omitted) (finding transfer appropriate where material acts and omissions underlying plaintiffs complaint occurred in transferee district); see Bortel v. JHM Mortgage Sec. L.P., No. C-94-20530, 1995 WL 7953 (N.D.Cal.Jan.5, 1995) (transferring securities fraud class action to Virginia because it was the factual center of the case, even though fourteen of the named plaintiffs resided in California); IBJ Schroder Bank & Trust Co. v. Mellon Bank, N.A., 730 F.Supp. 1278, 1281 (S.D.N.Y.1990) (finding transfer appropriate where misleading documents issued by defendant were prepared in transferee forum). Michigan bears a much more intimate connection to the events underpinning this case than does New York, which has no greater connection than any other district in which any potential class member resides. See Job Haines Home for the Aged v. Young, 936 F.Supp. 223, 230 (D.N.J.1996) (concluding in a securities fraud class action that the only contact with the transferor court was the fortuitous circumstance that the class representative happened to reside in the state and stating that “New Jersey has no more connection with the transactions and conduct underlying the case than any other venue to which the material [containing false statements] was directed”). Certainly, suit could be brought in any district in which stock was purchased. See 15 U.S.C. §§ 77v, 78aa. However, of all the potential host districts, the Eastern District of Michigan is the logical situs for resolution of this dispute. Accordingly, this factor weighs in favor of transfer. 4.Availability of Process to Compel Attendance of Unwilling Witnesses Neither Defendants nor Levine have identified any witness who would be unwilling to attend the trial of this action absent the compulsion of a subpoena. Because the key witnesses mentioned by Defendants reside in or closer to Michigan, any witness -unwilling to appear can be adequately represented through deposition testimony. See Westwood Ventures, Ltd. v. Forum Fin. Group, No." }, { "docid": "19894139", "title": "", "text": "facts underlying the infringement have no material connection to this forum, Firestone, 722 F.Supp. at 1030; Matra, 628 F.Supp. at 1535. The operative events concerning the alleged infringement occurred in California. Boreal Laser Inc. v. Coherent, Inc., 22 U.S.P.Q.2d 1559 (S.D.N.Y.1992); Gibbs & Hill, 745 F.Supp. at 996. Cento alleges that the majority of its sales and sizable sales of Milano Rope occur in the New York area. However, where the goods in question are sold in many states (and OroAmerica avers that it sells in every state in the union) the location of sales does not override the other factors favoring transfer. Matra, 628 F.Supp. at 1536. Finally, it should be noted that another factor for transfer, not at issue in this case, differs this motion to transfer from the one at issue in Christina. In Christina, New York provided the best forum for Christina’s unfair competition claim, which arose from the two parties’ efforts to sell their competing swimwear lines in certain New York stores. Although Cento has alleged a comparable claim in its Memorandum of Law, it has not alleged comparable incidents, and its general claim of infringement “upon information and belief’ does not imply any localized, particular incidents in New York which could count as a factor, in this analysis. In short, the balance of factors for transfer tips in favor of OroAmerica. The convenience of one party will be served while the other will only have to travel to a forum somewhat further but in all other respects comparable to the one it chose. Berkshire Int’l Corp. v. Alba-Waldensian, Inc., 352 F.Supp. 831, 833 (S.D.N.Y.1972); Matra, 628 F.Supp. at 1535. Sanctions OroAmerica has moved for sanctions on the grounds that Cento’s description of its New York office as a “place of business” is a material misstatement of fact, and that filing this action in the Southern District of New York amounts to harassment of OroAmerica. Rule 11, F.R.Civ.P., requires a federal court to impose sanctions against an attorney or party who signs a pleading, motion, or other paper, in violation of the rule that the" }, { "docid": "11765206", "title": "", "text": "witnesses are more readily available in New York and defendants witnesses are more readily available in Florida, trial would proceed as expeditiously in one forum as in another. Where material witnesses and records are equally available in two forums, and defendants fail to demonstrate that trial in the transferee forum will be more convenient, the motion for transfer should be denied. Usden v. Dunn Paper Company, 392 F.Supp. 953, 959-60 (E.D.N.Y.1975). LOCATION OF THE EVENTS IN ISSUE Defendants contend that the events in issue occured primarily in Florida and that only preliminary negotiations among Bel-las, Mack and Gibson and the drafting of the contract occurred in New York. Plaintiff agrees that preliminary negotiations and the drafting of the contract occurred in New York and further alleges that the services were also rendered in New York. Moreover, plaintiff suggests that New York law will govern. While defendants do not offer which state’s law will apply, if New York law is indeed controlling, transfer of the forum would not be favored in light of the preceding factors. In this instance, defendants have not met the burden of overriding plaintiffs choice of forum. DOCKET CONDITIONS OF THE TRANSFEROR AND TRANSFEREE COURTS Although relative docket conditions of the respective courts are to be considered in a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), A. Olinick & Sons v. Dempster Brothers Inc., 365 F.2d 439, 445 (2d Cir.1966), docket conditions are not dis-positive of such a motion. Dow Jones & Co. v. Board of Trade, 539 F.Supp. 190, 192-3 (S.D.N.Y.1982). With all due respect to the Northern District of Florida, it is unlikely that any court bears as crushing a burden as does the Southern District of New York. Nonetheless, extensive caseloads, considered alone, afford no relief to judges or to the defendants in this case. INTERESTS OF JUSTICE Plaintiffs choice of forum should be rarely rejected. Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. In this instance, plaintiff is an Ohio corporation with a strong connection with the chosen forum. But see Eichenholtz, 677 F.Supp. at 201-02; CES Publishing" }, { "docid": "3629238", "title": "", "text": "U.S. 518, 524-525, 67 S.Ct. 828, 831-32, 91 L.Ed. 1067 (1946). Here, under the terms of the trust indentures, the indenture trustee is the only authorized plaintiff, a representative status somewhat different from the one discussed in Koster. Yet, Schroder’s role as plaintiff is not quite the same as that of a wronged individual, the traditional plaintiff whose choice of forum is given great weight. The connection of these cases to New York is completely independent of Schroder. Schroder succeeded Mellon as indenture trustee after all of the transactions at issue had been completed and most of the significant events had occurred. It is entirely fortuitous that some of the controversial events took place in the same forum in which the successor trustee resides. No testimony is needed from Schroder because none of Schroder’s personnel witnessed the facts in dispute. After Schroder’s choice of forum is given due weight, the balance tips in favor of transfer to the Western District of Pennsylvania. CONCLUSION For the foregoing reasons, defendants’ motions are granted and IBJ Schroder Bank & Trust Co. v. Kirkpatrick & Lockhart, 89 Civ. 4183 and IBJ Schroder Bank & Trust Co. v. Mellon Bank, N.A., 87 Civ. 7396 are transferred to the Western District of Pennsylvania. SO ORDERED. . Schroder also notes that several members of Rosenman & Colin, the New York law firm representing it in these actions, may be required to testify in the Mellon case. Any testimony they would give would go merely to the issue of indemnity for Schroder’s attorneys’ fees, and not to any substantive issue in the Mellon litigation. Therefore, I do not consider these lawyers significant witnesses." }, { "docid": "21244760", "title": "", "text": "plaintiffs were located in the transferor forum that “[t]he deference given plaintiffs’ choice of forum, while perhaps less weighty in shareholder derivative suits, has full .force in securities action brought by individual plaintiffs” (emphasis added)). In the instant case, even if Levine’s choice of forum were entitled to substantial defer ence, the factors discussed above weigh sufficiently in favor of a transfer to override any such preference. A denial of transfer will not be premised* solely on choice of forum. In isolation, given its nature as a class action brought under the federal securities law, this factor weighs moderately in favor of Levine. 8. Trial Efficiency and the Interests of Justice Beyond these particular concerns, however, a district court has discretion to transfer an action to where the trial would best be expedient and just. See Red Bull Assoc. v. Best Western Int'l Inc., 862 F.2d 963, 967 (2d Cir.1988). “The relevant docket conditions of the transferor and transferee courts[,] [for example,] are relevant” to the transfer determination. Eichenholtz, 677 F.Supp. at 202. According to Defendants, the Southern District of New York’s present docket is considered to be more congested than the docket in the Eastern District of Michigan. In support, Defendants represent that since in 1997 the median time for a civil case to go from filing to disposition in New York was nine months as opposed to seven months in Michigan, a transfer would increase the overall efficiency of the federal court system. However, as Levine points out, the congestion averred to amounts to no more than two months. Judicial economy, although a relevant consideration, is insufficient on its own to support a transfér motion. See e.g., Warrick, 70 F.3d at 740; Butcher v. Gerber Prods. Co., No. 98 Civ. 1819, 1998 WL 437150, at *11 (S.D.N.Y. Aug. 3, 1998); Westwood Ventures, 1997 WL 266970, at *6; Eichenholtz, 677 F.Supp. at 202. Here, the relative congestion of the dockets for this district and the Eastern District of Michigan do not clearly call for either the transfer or retention of the action. Levine asserts that because New York is" }, { "docid": "19894130", "title": "", "text": "S.Ct. 839, 843, 91 L.Ed. 1055 (1947); Ayers v. Arabian Amer. Oil Co., 571 F.Supp. 707, 709 (S.D.N.Y.1983). However, “Section 1404(a) is intended to place discretion in the District Court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness,’ ” Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964). The core of Cento’s argument is that the Southern District of New York is not merely convenient to both parties under traditional Section 1404(a) analysis, but that New York, as the center of the United States jewelry industry, is the most natural and logical forum for this suit. Since most sales, most customers, the most important trade shows, and the finest expertise of the jewelry industry are located here, Cento argues, it makes sense for the case to be heard here. Logical and appealing as this argument is, it is not the test for transfer under Section 1404(a). The factors which should influence a court in deciding whether or not to transfer under Section 1404(a) include the place where the operative events occurred, the convenience of parties and witnesses, the location of documents, the relative ease of access to the sources of proof, the availability of process to compel attendance of unwilling witnesses, the plaintiffs choice of forum, a forum’s familiarity with the governing law, trial efficiency and the interests of justice. Boreal Laser Inc. v. Coherent Inc., 22 U.S.P.Q.2d 1559 (S.D.N.Y.1992); Gibbs & Hill, Inc. v. Harbert Int’l., Inc., 745 F.Supp. 993, 996 (S.D.N.Y.1990); Don King Prods., Inc. v. Douglas, 735 F.Supp. 522, 533 (S.D.N.Y.1990); Christina Canada, Inc. v. Wior Corp., 702 F.Supp. at 463. Location of the Parties The convenience of parties and witnesses is considered “the essential criteria under the venue statute,” First City Federal Savings Bank v. Register, 677 F.Supp. 236, 237 (S.D.N.Y.1988), and “the most significant factor,” Nieves v. American Airlines, 700 F.Supp. 769, 773 (S.D.N.Y.1988). Cento argues that the convenience of the parties" }, { "docid": "19894138", "title": "", "text": "Although it is likely that Cento Group in New York can provide evidence of the success of the infringement, the relevance of such material to the patent or OroAmerica’s alleged infringement is minimal. Transfer will facilitate access to the relevant documents and records. Boreal Laser Inc. v. Coherent, Inc., 22 U.S.P.Q.2d 1559 (S.D.N.Y.1992); Firestone v. Galbreath, 722 F.Supp. 1020, 1030 (S.D.N.Y.1989). Trial Efficiency and the Interests of Justice Beyond these particular concerns, however, a district court has discretion to transfer an action to where the trial would best be expedient and just. Red Bull Assoc. v. Best Western Int’l., Inc., 862 F.2d 963, 967 (2d Cir.1988). The Plaintiff has not alleged any reason why the courts in California cannot provide as full and fair a trial as the courts of New York. Nor does either forum’s familiarity or unfamiliarity with governing law justify transfer. Cento has made only one claim based on federal patent law, and presumably both courts in New York and California are equally likely to be familiar with federal patent law. The facts underlying the infringement have no material connection to this forum, Firestone, 722 F.Supp. at 1030; Matra, 628 F.Supp. at 1535. The operative events concerning the alleged infringement occurred in California. Boreal Laser Inc. v. Coherent, Inc., 22 U.S.P.Q.2d 1559 (S.D.N.Y.1992); Gibbs & Hill, 745 F.Supp. at 996. Cento alleges that the majority of its sales and sizable sales of Milano Rope occur in the New York area. However, where the goods in question are sold in many states (and OroAmerica avers that it sells in every state in the union) the location of sales does not override the other factors favoring transfer. Matra, 628 F.Supp. at 1536. Finally, it should be noted that another factor for transfer, not at issue in this case, differs this motion to transfer from the one at issue in Christina. In Christina, New York provided the best forum for Christina’s unfair competition claim, which arose from the two parties’ efforts to sell their competing swimwear lines in certain New York stores. Although Cento has alleged a comparable claim in" } ]

[ { "docid": "295439", "title": "", "text": "HILL, Circuit Judge: Defendant appeals from his conviction of interstate transportation of a stolen motor vehicle, claiming he was entitled to a new trial due to the inadvertent seating of a peremptorily challenged juror. FACTS The error in this case occurred during the seating of the jury panel after' the parties had exercised their peremptory challenges. The district court conducted the striking procedure at sidebar and requested that the parties call any mistakes to its attention. Defendant exercised one of his challenges against William Wigg; thereupon, the court announced that Mr. Wigg’s position would be taken by Agnes T. Platt. After the parties had concluded their peremptory challenges, the court read through the jury list to check it with the attorneys: Ms. Platt was on the list and Mr. Wigg was not. A few minutes later, the court directed the challenged jurors, by name, to step down from their seats and the remaining jurors to take certain seats to replace those stricken. Inadvertently, the court did not call the names of Mr. Wigg and Ms. Platt and thus Mr. Wigg continued sitting on the jury. No one called the court’s attention to this apparent oversight and the trial proceeded. After the jury returned a guilty verdict, the court asked the clerk to poll the jury. When the clerk called Ms. Platt’s name, there was no response. The clerk noted Ms. Platt was listed in that seat and proceeded to poll the remaining jurors. The clerk then returned to the juror who had not been called and learned it was Mr. Wigg. Neither party objected, to his presence on the jury. The court asked the government and defense attorneys if they had any other matters to raise before the jury was discharged and both replied they did not. The clerk subsequently discovered and advised the court of the error in not excusing Mr. Wigg. At a later hearing, called to advise the defendant of the problem, the defense counsel stated that he had not noticed the error, apparently because he was taking notes. The court denied defendant’s motion for a new" } ]

[ { "docid": "16758967", "title": "", "text": "was largely due to a personal dispute rather than ineffective representation. The record is insufficient for review because it only contains this brief questioning by the judge and contains no discussion of the issues raised on appeal regarding ineffective assistance of counsel. The only other attempt to raise this issue below was by Mrs. Scott in her Motion for New Trial based on the discovery of new evidence. The Defendants argue in their briefs that ineffective assistance was raised in the district court because Mrs. Scott’s Motion for New Trial was based on both grounds of discovery of new evidence and ineffective assistance of counsel. Her motion in the record only addresses the discovery of new evidence. However, in her Reply to the Government’s Response to Motion for New Trial, Mrs. Scott stated, “[t]he information gathered after trial is either newly discovered evidence or evidence of ineffective assistance of counsel.” She stated further, “[t]his approach was also strategically chosen to avoid the seven day deadline under Rule 33.” Mrs. Scott’s motion did not raise the issue of ineffective assistance of counsel, because even if her initial motion had raised the issue, her motion was untimely. A motion for new trial based on any other grounds than newly discovered evidence must be made within seven days after verdict or finding of guilty. Fed.R.Crim.P. 33. Mrs. Scott moved for a new trial on April 1, 1997, almost one year after her guilty verdict was returned on June 12, 1996. “In this circuit, a Rule 33 motion, filed more than seven days after the verdict and premised on ‘newly discovered evidence,’ is an improper vehicle for raising a claim of ineffective assistance of counsel.” United States v. Medina, 118 F.3d 371, 372 (5th Cir.1997) (citing United States v. Ugalde, 861 F.2d 802, 807-09 (5th Cir.1988)). We decline to review this issue because the Defendants’ failed to adequately raise it at the district court level. D. Denial of Challenges for Cause The Defendants argue the district court abused its discretion in denying their challenges for cause to excuse four prospective jurors. A prospective juror" }, { "docid": "6978670", "title": "", "text": "the jury. Before the government played the video tape of West’s meeting with Botyos, the government inserted a test-tape into its audio-visual equipment in order to insure that the equipment was functioning correctly. In front of the jurors, the government inadvertently inserted a portion of the tape which showed a CNN news broadcast recounting a violent shooting in California which had occurred several months before the trial. The broadcast, although startling, had nothing to do with the facts of the instant case, and showed no actual footage of the gunman or the shooting. After the government had turned off the tape, the defense immediately moved for a mistrial. The district court denied the motion, admonished the government, and asked the jurors to stand if “... you feel in any way that you were affected by that test tape in your ability to render a fair and impartial verdict in this case.” No juror arose, and the trial continued. Jury deliberations began on Monday, June 27, 1985. On Tuesday afternoon, June 28, the jury announced a deadlock, and the court recessed until the next morning. On Wednesday morning, June 29, the district court delivered what it termed a “modified, modified Allen charge” to the jury. After the instruction, the jury resumed its deliberations; late the next day, the jury returned a verdict finding West guilty as to Count II, and not guilty as to Counts I and III. On September 15,1988, the district court, in accordance with the sentencing guidelines, sentenced West to fifty-one months incarceration, (less credit for time served), based on an offense level of twenty-three. The court denied his request for a downward departure to twenty months, and ordered that West be under supervised release for a period of three years following his release from incarceration. This appeal followed. DISCUSSION West appeals certain evidentiary rulings and jury instructions given by the district court; he also challenges the validity of the Sentencing Guidelines. A. HEARSAY OBJECTION West first contends that the district court abused its discretion, or committed plain error, when it sustained the government’s hearsay objection. The government" }, { "docid": "20068", "title": "", "text": "mother exercised mutual control over the premises, see United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Baldwin, 644 F.2d 381, 382-383 (1981), our determination that the evidence supports the jury verdict renders discussion of this issue unnecessary. . In violation of the court’s instructions the foreperson brought an encyclopedia containing the Fourth Amendment into the jury room. Defendants seek to justify the judgment n. o. v. on the ground that the judgment n. o. v. was a proper method for the district court to deal with the infraction. Although defendants argued to the district court that this juror misconduct justified a judgment n. o. v. or a new trial, the trial court did not base its order on this ground. In light of the nature of the violation, the fact that defense counsel was aware of the infraction before the verdict was rendered but did not call it to the court’s attention or otherwise object until after the verdict was announced, and the subsequent inquiry by the trial court into the misconduct, the failure of the district court to enter a judgment n. o. v. or grant a new trial on the ground of juror misconduct cannot be said to be an abuse of discretion. See generally Tillman v. United States, 406 F.2d 930 (5th Cir.) (denial of new trial on grounds of juror misconduct reversible only for abuse of trial court’s discretion), vacated and remanded on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). . Ms. Jonas also contends that the automobile could not be the subject of forfeiture proceedings because the contraband seized from the car was found as the result of an illegal search. lt she is correct in her contention that the search of the automobile was in violation of the Fourth Amendment, she would clearly be entitled to a directed verdict. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Even though Ms. Jonas filed a motion to suppress evidence of the contraband found" }, { "docid": "11338818", "title": "", "text": "the trial court’s inquiry into the jury’s numerical division was not coercive, noting that \"he did not ask whether the jurors in the majority were for acquittal or a guilty verdict; the judge did not follow the inquiry with any statement imploring the jury to come to a decision; and the jury was not sent back to continue deliberations, but was dismissed for the weekend.” Id. at 407. . In Jones, the Sixth Circuit reversed a district court's denial of habeas relief in a case in which the trial court had inquired not only as to the split but also the majority's inclination and asserted that “it is your duty to reach a verdict if you can possibly do so — you 12 people are the only ones that can do it. The Court can't do it, nor anyone else. You twelve people are the only ones.” Id. at 1185. In addition, the jury had returned a guilty verdict within five minutes of receiving the court's supplemental charge. The Sixth Circuit held that the state trial court's “identification of a deadlocked jury's majority-minority count” and \"coercive jury charge,” and \"the speedy return of a verdict” constituted a totality of circumstances which violated the petitioner’s constitutional rights. Id. at 1186. . Montoya also argues that the trial court's instruction to the jury to continue deliberating was improper because under the Texas death penalty statute, \"if the jury is unable to answer any special issue, the defendant is to be assessed a life sentence,” Montoya v. State, 810 S.W.2d 160, 166 (Tex.Crim.App.1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991). Montoya contends that the trial court erred in not sentencing him to life imprisonment after the jury first indicated that it had deadlocked. The Texas Court of Criminal Appeals rejected this claim, holding that \"[ujnless the record reveals that the trial court abused its discretion in holding the jury for deliberations, reversal is not mandated.” See id. In any event, errors of state law are not grounds for granting habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68," }, { "docid": "72509", "title": "", "text": "the attorney did not notify the court of possible juror taint until he filed de la Fuente’s motion for new trial on June 28, 1984. Such neglect is inexcusable. Our cases teach that “a defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct.” United States v. Jones, 597 F.2d 485, 488 n. 3 (5th Cir.1979). In Jones, the court explained that a motion for new trial based on juror misconduct is a form of new trial motion for newly discovered evidence. Id. at 488. As such, the motion must be supported by proof that the evidence of misconduct was not discovered until after the verdict was returned. In the particular context of juror misconduct, this rule serves to ensure that the trial court is given every available opportunity to attempt to salvage the trial by ridding the jury of prejudicial influences. Thus, where the defendant or defense counsel knows of juror misconduct or bias before the verdict is returned but fails to share this knowledge with the court until after the verdict is announced, the misconduct may not be raised as a ground for a new trial. Id.; see also United States v. Edwards, 696 F.2d 1277, 1282 (11th Cir.1983), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1984) (no abuse of discretion in refusing to interrogate jury about alleged juror misconduct where defendant waited to hear the verdict before contesting jury’s impartiality); United States v. Dean, 667 F.2d 729, 732-34 (8th Cir.1982) (en banc) (untimely notification of juror misconduct waives right to new trial even where actual prejudice can be shown). In this case, not only did de la Fuente fail to offer the requisite evidence of timeliness, it is clear beyond dispute that he could not have carried his burden of showing that he discovered the evidence of misconduct after the jury’s verdicts were returned. His decision to gamble on the jury rather than inform the court of the problem in" }, { "docid": "7909597", "title": "", "text": "ANALYSIS Simmons raises the following two principal claims on appeal: (1) the district court committed plain error by failing to excuse, sua sponte, certain jurors for cause, and (2) the district court considered convictions resulting from a constitutionally invalid guilty plea as predicate convictions when sentencing Simmons under the Armed Career Criminal Act. For the following reasons, we conclude that neither of these claims has merit. We therefore affirm Simmons’ conviction. A. Excusing jurors sua sponte Simmons claims that four jurors — Dorothy White, Mary Floyd, Josephina Garcia, and Alejandro Gonzalez — displayed bias and partiality in the course of voir dire and, therefore, should have been excused by the district court sua sponte for cause. Simmons argues that the district court’s failure to excuse those jurors for cause, notwithstanding Simmons’ failure to challenge the jurors either for cause or peremptorily, deprived him of his Sixth Amendment right to an impartial jury. The constitutional standard for juror impartiality is whether the juror “can lay aside his opinion and render a verdict based on the evidence presented in court.” Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984). Evaluation of bias involves assessing a juror’s credibility and “therefore[] his or her demeanor.” Depree v. Thomas, 946 F.2d 784, 790 n. 12 (11th Cir.1991). “Accordingly, it is generally proper for a reviewing court, which must rely on a cold record, to defer to the conclusions reached by the trial judge on this issue.” Id.; see United States v. Nash, 910 F.2d 749, 753 (11th Cir.1990). If an objection is timely raised below, this Court reviews the determination of the district court for “manifest abuse of discretion.” United States v. Muller, 698 F.2d 442, 444 (11th Cir.1983). In the instant case, Simmons failed to object during the lower court proceedings. We must therefore grant the lower court’s finding of impartiality still greater deference under the plain error doctrine: Plain errors are those seriously affecting the ‘fairness, integrity, or public reputation of judicial proceedings.’ Furthermore, the error must be both obvious and substantial. [Plain" }, { "docid": "16888379", "title": "", "text": "jurors. Those who are not struck at this time become members of the actual jury; those stricken are replaced by other veniremen, who are in turn subject to any remaining peremptory challenges. The process continues until the parties exhaust their challenges or a jury that is satisfactory to both sides is empaneled. See J.A. at 82. After passing over a potential juror in the first round of the process, Williams sought to strike him in the second round. The district court refused this request to backstrike, ruling that under its local practice, the venireman in question had become part of the permanent jury. Id. at 15-16. Williams now argues that, since no written local rule prohibited backstriking, and the court did not inform his out-of-district counsel of its policy prior to jury selection, his lead counsel was surprised and his right to make peremptory challenges was unduly infringed. Although not constitutionally protected, the right to peremptorily challenge jurors is “one of the most important of the rights secured to the accused,” Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894), and “a necessary part of trial by jury.” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). Williams’ right to make such challenges, however, was not impaired through the process by which his jury was empaneled. As the district court noted in its opinion denying appellant’s motion for new trial on this ground, “[Williams] had an opportunity to challenge, up to his allowable limit of ten, each juror selected.” J.A. at 83. That Williams’ Florida counsel may have been unfamiliar with the Eastern District of Virginia’s jury selection system does not alter the fact that that system afforded him full latitude in exercising his right to make peremptory strikes. “[T]he method for exercising peremptory challenges remains largely a matter of local rule.” United States v. Anderson, 562 F.2d 394, 397 (6th Cir.1977); see also Kotler v. American Tobacco Co., 926 F.2d 1217, 1227 n. 9 (1st Cir.1990) (trial judges have broad discretion in structuring the method of" }, { "docid": "3947543", "title": "", "text": "County and of jury panels in that county. 1. The Evidence on Jury Selection The historical facts as to the selection of the jury, as found by Chief Judge Brieant, are not substantially in dispute. In accordance with New York procedure, each side was entitled to 15 peremptory challenges. Challenges to prospective jurors were exercised in rounds, with the prosecutor acting first in each round. Persons not excluded after the round in which they were first seated in the jury box were thereafter immune from challenge. See N.Y.Crim.Proc.Law §§ 270.15, 270.25 (McKinney 1971). In the first round of selection, the State challenged six persons peremptorily. Defense counsel objected on the ground that the prosecutor had “systematically excluded every white juror seated in the box.” When the prosecutor responded that two of the challenged jurors were Hispanic, the defense stated that they were “light-skinned.” The court did not, at this point, require the prosecutor to state any reasons for his peremptory challenges. After defense counsel had challenged four of the remaining prospective jurors, there remained two unchallenged jurors; these two were permanently seated; neither was White. In the second round, the prosecutor peremptorily challenged three prospective jurors, two of whom were White. Defense counsel again objected and then peremptorily challenged three prospective jurors, including the only remaining White. Defense counsel stated that they had challenged the remaining White juror because she was “virtually illiterate.” The court stated that thereafter both sides would be required to state for the record the reasons for their peremptory challenges. Defense counsel persuaded the court, however, that defendants should not be subject to such a requirement. During the following three rounds, seven new prospective jurors were challenged peremptorily: one non-White by the prosecution, and six, including one White, by the defense. After the fifth round, nine jurors, two of whom were White, had been permanently seated. In the sixth selection round the prosecutor peremptorily challenged two of the three new prospective jurors. Defense counsel noted that both challenged jurors were White, and argued that the prosecution was engaged in a “pattern of racial discrimination.” The trial" }, { "docid": "16758968", "title": "", "text": "issue of ineffective assistance of counsel, because even if her initial motion had raised the issue, her motion was untimely. A motion for new trial based on any other grounds than newly discovered evidence must be made within seven days after verdict or finding of guilty. Fed.R.Crim.P. 33. Mrs. Scott moved for a new trial on April 1, 1997, almost one year after her guilty verdict was returned on June 12, 1996. “In this circuit, a Rule 33 motion, filed more than seven days after the verdict and premised on ‘newly discovered evidence,’ is an improper vehicle for raising a claim of ineffective assistance of counsel.” United States v. Medina, 118 F.3d 371, 372 (5th Cir.1997) (citing United States v. Ugalde, 861 F.2d 802, 807-09 (5th Cir.1988)). We decline to review this issue because the Defendants’ failed to adequately raise it at the district court level. D. Denial of Challenges for Cause The Defendants argue the district court abused its discretion in denying their challenges for cause to excuse four prospective jurors. A prospective juror may be excluded for cause where his or her views would prevent or substantially impair the performance of his or her duties as a juror in accordance with his or her instructions and oath. Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Nethery v. Collins, 993 F.2d 1154, 1160 (5th Cir.1993). The Defendants must show the district court’s conclusion that the prospective jurors in question could perform their duties as jurors was manifest error. See United States v. Dozier, 672 F.2d 531, 547 (5th Cir.1982). Two of the prospective jurors in question indicated they would draw negative inferences from a defendant’s failure to testify. Upon questioning and instruction by the court, however, both prospective jurors indicated they would be able to put aside such inferences and consider only the evidence presented by the government. Accordingly, the district court did not err in denying the Defendants’ challenge for cause. Id. at 549 (district court did not err in denying challenge for cause where prospective juror agreed to put aside prior" }, { "docid": "10919225", "title": "", "text": "of the record and impermissible inferences drawn from it, we are compelled to vacate them. Here, the evidence was insufficient to support the district court’s finding of intentional misconduct or even exclusive responsibility on the part of Mel-lin for the submission of the extraneous evidence, and the district court clearly erred in so ruling. C. New Trial Grant Finally, we consider the district court’s decision to order a new trial on the kidnapping charge because the unadmitted evidence deprived Lentz of a fair trial. Under Rule 33, the district court “may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). “If prejudicial evidence that was not introduced at trial comes before the jury, the defendant is entitled to a new trial.” United States v. Barnes, 747 F.2d 246, 250 (4th Cir.1984). In determining whether evidence is prejudicial, “[t]he general standard ... is whether there is a reasonable possibility that the jury’s verdict was influenced by the material that improperly came before it.” Id. (internal quotation marks omitted). “Furthermore, there is a presumption of prejudice where such improper evidence has been made available to the jury, and the burden is on the government to prove that it is harmless.” Id. at 250-51. It is not necessary that the defendant prove that the prejudicial evidence was intentionally placed before the jury to obtain a new trial; accidental or inadvertent submission of the materials will suffice. See United States v. Greene, 834 F.2d 86, 88 (4th Cir.1987). We review the district court’s decision to grant a new trial for abuse of discretion. See United States v. Cheek, 94 F.3d 136, 140 (4th Cir.1996). Because there is no dispute that the brown day planner and the black day planner were present in the jury room and reviewed by the jurors during their deliberations, we proceed directly to the question of whether the district court abused its discretion in ruling that the government failed to overcome the presumption that the extraneous evidence was prejudicial. In his motion to set aside the jury’s verdict, Lentz asserted that he" }, { "docid": "3162844", "title": "", "text": "exercise a peremptory challenge. Counsel for McMahan asserted that, had he known Cole had some connection to Johnson County, Kansas, Cole would have been stricken. At a hearing on the motion, the trial court found counsel’s claim “hard to believe” and, concluding that no actual bias or prejudice was shown, refused to grant a new trial. The Supreme Court recently stated: A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. McDonough Power Equipment, Inc. v. Greenwood, — U.S. -, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). McDonough held that the complaining party first must “demonstrate that a juror failed to answer honestly a material question on voir dire,” id. at 850; and then must “show that a correct response would have provided a valid basis for a challenge for cause.” Id. Although McDonough was a civil case, we believe the same principle would apply to a criminal trial. Testimony by Cole at a hearing on defendant’s motion indicated that he has an honest belief that he is a resident of Kansas City, Missouri. The trial court specifically found that Cole “honestly and straightforwardly responded to all questions asked of him during voir dire * * *.” Under the McDonough test, defendant is not entitled to a new trial. As a general rule, the decision whether to grant or deny a motion for a new trial lies within the discretion of the district court. McDonough, 104 S.Ct. at 850. The trial court is in the best position to evaluate the relevance of undisclosed evidence or later-discovered facts and consider their impact on the outcome of the trial. In this case, the trial court gave careful consideration to defendant’s motions and determined that a new trial was not justified. On the basis of the record, the district court did not abuse its discretion. V. Sentencing McMahan was sentenced" }, { "docid": "20884637", "title": "", "text": "about biased jurors. More important, a per se rule in this context seems inconsistent with the hostility expressed in McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548 [, 104 S.Ct. 845, 78 L.Ed.2d 663] (1984), to unnecessary new trials and to the axiom that a defendant is entitled to a fair trial but not a perfect one. We think, therefore, that the Sixth Amendment does not require automatic reversal of every conviction reached by a jury that included a felon. United States v. Boney, 977 F.2d 624 (D.C.Cir.1992). It is the defendant’s duty to investigate, to question, and to assert a challenge prior to the return of the verdict. If actual bias or prejudice is revealed, an obvious challenge for cause is timely presented. If not, the court may still determine the necessity of taking remedial action, such as the seating of an alternate juror. In an effort to obtain a new trial, it is incumbent upon the defendant to clearly demonstrate that the juror’s lack of qualifications presented actual bias or prejudice, affecting the juror’s impartiality and impacting the fairness of the trial. A challenge after the verdict without such a showing comes too late. Humphreys’s challenge fails in both respects. Humphreys did not pursue any questioning of the juror on voir dire. Nor did he further investigate or raise any challenge during trial. Having failed to diligently and timely discover the relevant information, he is precluded from being heard on the issue of juror qualification. At the conclusion of the hearing on Humphreys’s motion, the district court specifically found that there was no evidence of either bias or unfairness as a result of the seating of this juror. This conclusion is not clearly erroneous and we have no inclination to set it aside. See United States v. Miscellaneous Firearms & Ammunition, 945 F.2d 239 (8th Cir.1991). The court did not abuse its discretion in refusing to grant Humphreys’s motion for a new trial. E. Lesser Included Offense Much to the benefit of Humphreys, the district court reduced the charge on count 3 from tax evasion to the" }, { "docid": "948304", "title": "", "text": "by the district court because of a hearing problem. Another prospective juror stated that he had served as a military policeman while in the Army and had worked as a records supervisor and substitute corrections officer in 1953. He was peremptorily challenged by plaintiffs’ counsel. A third prospective juror revealed that her husband was an auxiliary police officer who assisted in traffic control and similar duties. She sat as a juror. Despite the disclosures of her fellow prospective jurors, Mrs. Cleo Green, the foreperson, did not reveal that her son was about to complete a training program as a parole officer. After an unfavorable jury verdict on August 3, 1978, plaintiffs’ counsel filed a Motion for a New Trial. Fed.R.Civ.P. 59. Thereafter, the district court reluctantly permitted plaintiffs’ counsel to interview three jurors. Plaintiffs’ counsel interviewed two jurors. During these interviews, plaintiffs’ counsel first learned that Mrs. Green’s son was about to complete a training program as a parole officer. The juror who revealed to plaintiffs’ counsel that Mrs. Green’s son was training to become a parole officer allegedly stated: “Oh, I shouldn’t have told you that, should I have?” He then attempted to interview Mrs. Green, the foreperson. She refused. Based upon these and other facts, plaintiffs’ counsel filed a Supplemental Motion for Relief From Judgment, Fed.R.Civ.P. 60(b), alleging inter alia, that Mrs. Green’s silence during voir dire abrogated plaintiffs’ right to peremptorily challenge her. The district court denied plaintiffs’ counsel’s request for either an evidentiary hearing or a new trial, stating: Mrs. Green’s response to the question regarding law enforcement may well be, in the technical sense, inaccurate, but not necessarily to a lay person. Then, too, the information obtained indicated that Mrs. Green’s son was in training, not yet a parole officer. However, the critical issue is whether Mrs. Green was prejudiced or would favor police officers and her answer to the question of credibility was negative. At most, then, we have an inadvertent concealment of less than prejudicial impact. Plaintiffs appeal. II. The sole issue on appeal is whether the district court abused its discretion by" }, { "docid": "295441", "title": "", "text": "trial because the defendant had waived his right to object to the error unless he could show Mr. Wigg was prejudiced against him. DISCUSSION Defendant claims that his right of peremptory challenge is a substantial right which was impaired by the court’s error in seating a stricken juror. As a result of this impairment, defendant argues that he is entitled to a new trial. Although it has not been reported in any federal decisions, this issue has arisen in several state court cases. In Texas, the courts have held that it is the duty of the parties to advise the court of any errors in the seating of struck jurors before the jury is impaneled. If the defendant has not exercised sufficient diligence to perceive the error and call it to the court’s attention in timely fashion, prejudice must be shown to obtain a new trial. Acosta v. State, 522 S.W.2d 528 (Tex.Cr.App.1975); Anderson v. State, 142 Tex.Cr.R. 384, 154 S.W.2d 482 (1941). Two other states have granted new trials without requiring a showing of prejudice when struck jurors accidentally served on the jury panel. State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); Sherman v. State, 2 Ga.App. 148, 58 S.E. 393 (1907). Defendant contends that the rule in these cases does not place any burden on the parties to ensure that the proper jury panel is seated. In Sherman, however, the court discussed a previous case where it denied a new trial for lack of diligence in discovering the error; it apparently excused the failure to do so in this case because defendant’s counsel was near-sighted and did not see the challenged juror on the panel. Sherman, 58 S.E. at 394-95. A similar improper jury issue was discussed in United States v. Levesque, 681 F.2d 75, 80-81 (1st Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 574, 74 L.Ed.2d 936 (1982), where the person intended as the second alternate was accidentally seated on the jury. The court noted that “defects of less than a fundamental nature will be overlooked if they were not called to the court’s" }, { "docid": "23174876", "title": "", "text": "determining whether section 848’s continuing series requirement had been met. Id. at 526. We see no meaningful difference between the facts of Sterling and the circum stances of this case. The district court did not abuse its discretion when it admitted the testimony of Jose Miranda. V. JURY CONSIDERATION OF EXTRINSIC MATERIAL On August 20, 1986, a jury found Hernandez guilty on all counts. Hernandez now urges that the jury’s verdict was tainted by the jurors’ exposure to extrinsic matters during the course of their deliberations. First, Hernandez maintains that the jurors were improperly influenced by a “sign from God.” Second, Hernandez claims that the jurors’ inadvertent receipt in the jury room of some notes implicating him in the death of his girlfriend irrevocably prejudiced the verdict. We reject each of these claims. A. Sign from God After the verdict was returned, Hernandez filed a motion for new trial based upon the affidavit of Audrey Giles, one of the jurors in the case. In her affidavit, Giles states that on the final morning of the jury’s deliberations one of the other jurors commented that she hoped a third, unnamed juror would wear his blue blazer that day. After the jury reached its verdict, Giles was told the following: (1) that one of the jurors had prayed to God that another juror, Walter Geudtner, would change his vote from not-guilty to guilty; (2) that this juror had asked for and received a sign from God that her prayers had been heard and that Mr. Geudtner would change his vote; and (3) that the sign would be that Mr. Geudtner would be wearing his blue blazer to court on a particular day. Hernandez claims that the introduction of this “sign from God” into the jury deliberations impermissibly tainted the verdict. He asked for an evidentiary hearing so that this matter could be explored further, but the district court denied his request. “A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is ‘a reasonable possibility that the extrinsic" }, { "docid": "16192819", "title": "", "text": "indictment which stated in detail the insufficiency of the indictment to constitute offenses. The demurrers were overruled, the court considering that the grounds of attack upon the indictment could be raised at the trial. The defendants were then arraigned and pleaded not guilty and when called for trial moved for a severance urging as the reason that the courts had ruled that defendants when tried jointly must join in “their challenge to jurors.” Counsel in effect said they contested the ruling and considered the statute upon which it was based to be “in derogation of the individual’s rights, guaranteed to him by the Constitution.” Other grounds for severance were urged but the court denied the motion and to the ruling each of the defendants excepted. In fortification of the motion for severance, at the selection of the jury, counsel, in succession for each defendant, challenged particular jurors peremptorily, expressing at the same time the acceptance by the other defendants of the challenged jurors. After ten such challenges had been made counsel interposed a peremptory challenge to other jurors in behalf of all of the defendants, stating as reasons that they “collectively” were not. “bound by what their co-defendants may have done with respect to any particular juror, and that, therefore, they are still within their rights.” The court denied the challenge, ruling that under the provisions of the act of Congress “all the defendants will be deemed a single party, and tén challenges having been exercised in the aggregate, the right of challenge is exhausted.” Defendants, excepted and the trial proceeded resulting in a verdict as follows: Schaefer and Vogel guilty on count nine only; Werner on counts one, two, four, and nine; Darkow on one, three, five, six and nine; Lemke on count nine only. Motions for arrest of judgment and for a new trial were made and overruled and defendants were sentenced to various terms of imprisonment. The case is here upon writ of error directly to the District Court as involving constitutional questions. It is conceded that the constitutionality of the Espionage Act has been sustained (Sugarman" }, { "docid": "14313218", "title": "", "text": "After Big-by. assaulted Judge Leonard, it was incontrovertible that he posed a real danger to all assembled in the trial court. Judge Leonard, therefore, was not beyond the bounds of his ample discretion to decide whether a defendant should be restrained when he ordered Bigby shackled and handcuffed. See Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir.1997)(“The decision to restrain an obstreperous defendant with visible restraints lies within the sound discretion of the trial judge.” (citing Allen, 397 U.S. at 343-44, 90 S.Ct. 1057)). Accordingly, a COA should not issue on this point. D. Juror Challenges Bigby next attempts to secure a COA by arguing that he was denied due process when the trial court altered the sequence established in Article 35.13 of the Texas Code of Criminal Procedure for challenging jurors in a capital case. “Article 35.13 states ... that the veniremen shall ‘be passed for acceptance or challenge first to the state and then to the defendant.’ ” Bigby, 892 S.W.2d at 879. Upon both parties’ completion of voir dire, the state must choose to accept the venire member or challenge him either for cause or peremptorily: only then should the defendant or his counsel exercise its peremptory or causal challenge. Id. at 880. In Bigby’s case, the trial court ruled that the voir dire challenges of venire member 12 would proceed as follows: “State’s challenge for cause, appellant’s challenge for cause, State’s peremptory challenge, and appellant’s peremptory challenge.” Id. at 879. Arguing that this ruling violated the selection procedure set forth in Article 35.13, Bigby’s counsel objected. Id. Although the Texas Court of Criminal Appeals concluded that the district court erred in overruling this objection to the order of voir dire, it ultimately held the error to be harmless. Id. at 881-82. In addressing Bigby’s claims for a grant of COA based on the irregularity in the sequence of challenges during voir dire, we note that violations of state law are not generally cognizable on habeas review unless the error renders the trial as a whole fundamentally unfair. See Fuller v. Johnson, 158 F.3d 903, 908" }, { "docid": "22346859", "title": "", "text": "could have an open mind despite the discussion. One juror who equivocated as to whether she could enter the jury box with an open mind was removed sua sponte by the trial judge, id., at 90. One juror was dismissed for cause because she was not “as frank as she could [be]” concerning the effect of her feelings toward members of the Islamic Faith and toward defense counsel, id., at 81. One juror was dismissed because of her inability to impose the death penalty, id., at 86-87, while another was removed based upon his statement that upon a finding of capital murder, he could not consider a penalty less than death, App. 339-341. The prosecution and the defense each peremptorily challenged 6 potential jurors, and the remaining 14 were seated and sworn as jurors (two as alternates). Petitioner did not renew his motion for change of venue or make any other objection to the composition of the jury. Of the 12 jurors who decided petitioner’s case, 8 had at one time or another read or heard something about the case. None had indicated that he had formed an opinion about the case or would be biased in any way. The jury found petitioner guilty of capital murder and recommended that he be sentenced to death. After taking the matter under advisement and reviewing a presentence report, the trial judge accepted the jury’s recommendation and sentenced Mu’Min to death. Mu’Min appealed, contending that he was entitled to a new trial as a result of the judge’s failure to permit the proposed voir dire questions. By a divided vote, the Supreme Court of Virginia affirmed his con viction and sentence, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information. Rather, an accused is only entitled to know whether the juror can remain impartial in light of the previously obtained information. 239 Va. 433, 443, 389 S. E. 2d 886, 893 (1990). We" }, { "docid": "23472173", "title": "", "text": "and Wilson were the only defendants charged in connection with this alleged venture. The district court granted Wilson's motion for judgment of acquittal on this count, and the jury acquitted Ritch on this count. The charge against Kalish was dropped pursuant to his plea agreement with the government. . Fed.R.Crim.P. 23(b) provides that if the court determines that just cause exists to excuse one or more jurors after the trial commences and before the verdict is rendered, the parties may, with the court’s approval, stipulate to a jury of less than twelve persons. On August 1, 1983, this rule was amended to include the following: \"Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.” . This argument was presented to the district court and thus is preserved for our review. . The district judge also had another outside commitment that would have caused him to recess early that afternoon even if this juror had not needed to see the doctor. . Appellant Howard actually filed the new trial motion. Appellants Levine and Ritch filed a motion to adopt Howard's new trial motion, which the district court granted. . In his appellate brief to this court, Wilson also adopts the arguments of his co-appellants regarding the district court's denial of the new trial motion. Wilson, however, never joined in the new trial motion and hence cannot challenge the denial of it on appeal. . This second appeal has been consolidated with the former appeals challenging the appellants' convictions. . We vacate this portion of the district court's order without prejudice to the defendants' right to file a § 2255 motion after disposition of the direct appeal. . In United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), the Supreme Court established that a rule 8(b) claim is subject to the harmless error rule. Because we conclude that joinder is proper in this" }, { "docid": "18633179", "title": "", "text": "shared the foreman’s understanding of the damage award. The district court characterized the error as one in transmission of the verdict, rather than an attempt to impeach the verdict, and entered judgment for the plaintiff in the amount of $273,750. Id. On appeal, the Eighth Circuit acknowledged that the district court could consider jurors’ testimony that through inadvertence, oversight, or mistake, the announced verdict was not the one to which the jurors had agreed. Id. at 74. However, the Eighth Circuit ruled that the error in this case went to the validity of the verdict and receiving the jurors’ statements violated “Rule 606(b) because the testimony relates to how the jury interpreted the court’s instructions, and concerns the jurors’ ‘mental processes,’ which is prohibited by the rule.” Id. Appellant also cites several other cases to support its position, but these are distinguishable. For example, Peveto v. Sears, Roebuck & Co., 807 F.2d 486 (5th Cir.1987), was a contributory negligence case in which the jury determined that the defendant was only four per cent negligent. The jury found that the actual damages were $100,000. Id. at 488. This figure was four per cent of the requested 2.5 million in damages. Sometime after the verdict was returned the plaintiff’s attorney contacted members of the jury to inquire if they realized that the plaintiffs would receive only $4000 under the verdict returned. At a hearing on the matter, some of the jurors stated that they had intended the net recovery to be $100,000, but others stated that the outcome was as they intended. Id. The district court denied the plaintiff’s motion for a new trial and the Fifth Circuit affirmed. Peveto is distinguishable from the present case for two reasons. First, the jurors were not unanimous in confirming that the verdict had been communicated incorrectly. Clearly this is not a case where “all the jurors agreed that through inadvertence, oversight or mistake the verdict announced was not the verdict on which agreement had been reached.” Weinstein’s Evidence, supra. Secondly, in Peveto the plaintiffs’ attorney sought out the jurors after the trial. This runs" } ]

[ { "docid": "6041749", "title": "", "text": "1014); see also United States v. Wright, 665 F.3d 560, 568 (3d Cir.2012) (explaining that “[t]he bribery theory does not require that each quid, or item of value, be linked to a specific quo, or official act. Rather, a bribe may come in the form of a stream of benefits” (internal quotation marks omitted)). There was, in this case, an ongoing course of illicit and repugnant conduct by Jefferson — conduct for which he was compensated considerably by those on whose behalf he was acting. An absurd result would occur if we were to deem Jefferson’s illicit actions as outside the purview of the bribery statute, simply because he was rewarded by periodic payments to his family’s businesses. Given the choice between a “meat axe or a scalpel” when interpreting a statute, we, like the Supreme Court, favor the scalpel. See Sun-Diamond, 526 U.S. at 412, 119 S.Ct. 1402. We will not, however, carve from the bribery statute a criterion that depends on the public official’s preferred method of payment. C. In his third appellate contention, Jefferson maintains that his honest services wire fraud convictions must be vacated because of an erroneous jury instruction on the self-dealing theory of honest services wire fraud that was repudiated by the Supreme Court in Skilling v. United States, — U.S. -, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). In response, the government concedes that an instructional error occurred, but maintains that the error was harmless beyond a reasonable doubt. Jury instructions are reviewed holistically for abuse of discretion on claims of adequacy, but, as explained above, Jefferson’s contention that the instruction failed to correctly state the applicable law is reviewed de novo. See United States v. Jeffers, 570 F.3d 557, 566 (4th Cir.2009); El-Shamari, 217 F.3d at 235, Where the jury has been instructed on two theories of guilt, and one of those theories is erroneous, we further apply a harmless error standard of review. See Hedgpeth v. Pulido, 555 U.S. 57, 60-61, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) (per curiam); United States v. Hornsby, 666 F.3d 296, 305 (4th Cir.2012). 1." } ]

[ { "docid": "13493639", "title": "", "text": "‘harmless beyond a reasonable doubt.’ ” United States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir.2009) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Where there was no objection at trial, however, we review jury instructions for plain error. Id. “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Fed.R.Crim.P. 52(b). “To notice error under Rule 52(b), we must find that (1) there is ‘error’; (2) it was ‘plain’; and (3) the error affected ‘substantial rights.’ ” United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004) (quoting United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Even if these three conditions are met, the court may reverse the district court only if the error “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). 4.The Jury Instructions on Undisclosed Conflicts of Interest were Erroneous and the Error was Plain The parties agree that the first two prongs of the plain error test are satisfied. An error is plain if it is clearly inconsistent with established law at the time of appel late consideration. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see also Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013) (holding “whether a legal question was settled or unsettled at the time of trial, ‘it is enough that an error be ‘plain’ at the time of appellate consideration.’ ” (quoting Johnson, 520 U.S. at 468, 117 S.Ct. 1544)). The court instructed the jury on the mail and wire fraud counts as follows: In order for defendants Robles and Gar-rido to be found guilty of [mail or wire fraud], the government must prove each of the following four elements beyond a reasonable doubt: First, the defendant knowingly made up or participated in a scheme or plan to deprive the City of South Gate and its citizens of their" }, { "docid": "4901379", "title": "", "text": "defendant did not object to the district court’s jury instruction regarding materiality at trial, this court’s review is for plain error. United States v. Nicolaou, 180 F.3d 565, 569 (4th Cir.1999). “To reverse for plain error there must be (1) an error, (2) which is plain, (3) which affects substantial rights, and (4) which seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir.1993) (internal quotation marks and citations omitted). The plain error exception is applied “sparingly” and saves only “particularly egregious errors.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Review of the district court’s instruction on materiality reveals no plain error as the instruction is wholly consistent with this court’s recent articulation of the materiality test: “[t]he test of materiality is whether the false statement has a natural tendency to influence agency action or is capable of influencing agency action.” United States v. Garda-Ochoa, 607 F.3d 371, 375-76 (4th Cir.), cert. denied, — U.S.-, 131 S.Ct. 494, 178 L.Ed.2d 313 (2010). Finding no error, we affirm the district court’s denial of defendant’s Motion to Dismiss as to Count One and its denial of the Motion for Acquittal on Count One. Finding no plain error in its jury instruction on materiality, we affirm the district court’s denial of the Motion for a New Trial. C. Stover argues that as to Count One, the government failed to prove that defendant’s statements were false and that he knew they were false. Further, Stover asserts that it was error for the district court to deny his Motion for Judgment of Acquittal or New Trial. On Count Three, defendant argues that the district court erred in denying his Motion for Judgment of Acquittal or New Trial because the United States failed to prove that defendant had the requisite intent to impede an investigation. “A defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.1997) (internal quotations omitted). In reviewing the" }, { "docid": "8251069", "title": "", "text": "mandated a point-by-point enumeration of all of the Rule 404(b) evidence employed in a case, we find no plain error in the court’s failure to sua sponte reference the evidence of their precon-spiracy drug dealing in its jury instructions, given both the midtrial and final jury instructions. . A stun belt is a device worn under clothing around a defendant's waist that allows a courtroom security officer to remotely deliver an electric shock to disable the defendant temporarily if his or her actions pose a security risk. . Among other things, appellants were involved in organized crime and acts of vio-fence including multiple counts of murder and attempted murder; they were each facing sentences of up to life imprisonment if convicted; they had conspired to kill, attempted to kill, or participated in actually killing witnesses; and they had made belligerent comments and threats of physical violence to the U.S. Marshals. . In the earlier Moore trial involving several of appellants' coconspirators, the district court acknowledged some risk that the stun belts would be visible. See Moore, 651 F.3d at 47. . The extent to which appellants sufficiently objected below is debated by the parties. For the appellants who did not object below, we review the statements only for plain error. However, in this case, the harmlessness of the error beyond a reasonable doubt resolves the issue regardless of the standard of review. . See also, e.g., United States v. DeLoach, 34 F.3d 1001, 1004 (11th Cir.1994); United States v. Johnson, 26 F.3d 669, 677 (7th Cir.1994); United States v. Blevins, 960 F.2d 1252, 1260 (4th Cir.1992); United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 976 (1991). . Appellants objected to most, but not all, of the statements that they challenge on appeal. We would ordinarily review the unobjected-to statements only for plain error. But because prejudice is required to warrant reversal under either substantial-prejudice or plain-error review, and the absence of prejudice is dis-positive here, we need not differentiate between those two standards to resolve this case. See" }, { "docid": "22881592", "title": "", "text": "convictions on many grounds. Kemp argues that the government failed to present sufficient evidence to support his convictions for mail fraud relating to his asset-locator business. Hoick and Umbrell challenge them wire fraud convictions by arguing that the indictment failed to state an offense, the District Court erroneously instructed the jury, and the government presented insufficient evidence to sustain the convictions. Hoick and Umbrell also argue that their conspiracy convictions must be vacated because there was a prejudicial variance between the crime charged in the indictment and the evidence adduced at trial. Hawkins claims that the government presented insufficient evidence to support his convictions for wire fraud and perjury, that the District Court’s jury instructions on wire fraud omitted an essential element, and that the Court wrongly admitted several forms of unfairly prejudicial evidence. Finally, all appellants contend that the District Court erred by individually questioning the jurors upon receiving complaints of juror misconduct and then discharging Juror 11. We consider each of these sundry claims in turn. A. Kemp’s Mail Fraud Convictions Kemp claims that the government presented insufficient evidence to support his convictions for honest services mail fraud concerning his role in the asset-locator business for which he received $1,300. We review sufficiency-of-the-evidence challenges with particular deference to the jury’s verdict. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). Because Kemp did not raise this argument to the District Court in his motion for acquittal, we review for plain error. United States v. Vampire Nation, 451 F.3d 189, 203 (3d Cir.2006). Plain error requires: “(1) an error; (2) that is plain; and (3) that affected substantial rights.” Id. As we will explain, the jury’s conclusion on this count was supported by the evidence and not plain error. To prove mail fraud, the government must establish “(1) the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails ... in furtherance of the scheme.” United States v. Antico, 275 F.3d 245, 261 (3d Cir.2001). Congress has clarified that “the term ‘scheme" }, { "docid": "19064272", "title": "", "text": "reversible error. United States v. Passaro, 577 F.3d 207, 221 (4th Cir.2009) (internal quotation marks omitted). Put succinctly, we are satisfied that the court’s “quid pro quo” instructions were adequate. In its Hobbs Act instruction, the court made clear that extortion under color of official right requires an intent to have the public official “take specific official action on the payor’s behalf.” J.A. 7682-83 (emphasis supplied). Similarly, in its instruction on honest-services wire fraud, the court referred to the “quo” in a quid pro quo exchange as “the requested official action” — signaling that an official action necessarily entails some particular type of act within the parties’ contemplation at the time of the exchange. Id. at 7669. In sum, we are satisfied that the court properly instructed the jury on the “quid pro quo” requirement of the charged offenses. Accordingly, we reject Appellant’s claim of instructional error in that respect. B. Sufficiency of the Evidence This leads us to Appellant’s claim that the Government’s evidence was insufficient to support the convictions. “We review a challenge to the sufficiency of the evidence de novo.... ” United States v. Bran, 776 F.3d 276, 279 (4th Cir.2015). If, viewing the evidence in the light most favorable to the Government, we find there is substantial evidence to support the conviction, we will affirm the jury verdict. See United States v. Hager, 721 F.3d 167, 179 (4th Cir.2013). “Substantial evidence is such evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). To review, the Government set out to prove that Williams and Appellant engaged in a corrupt quid pro quo. Williams, we know, supplied the “quid,” and plenty of it. Among other things, he provided Appellant’s family — generally at the behest of Appellant or Mrs. McDonnell — with multiple five-figure payments and loans, expensive getaways, shopping trips, golf outings, and a Rolex watch. The greater challenge for the Government was persuading the jury that Williams’s payments to Appellant and his family were “pro" }, { "docid": "21669969", "title": "", "text": "also the primary beneficiary of the conspiracy, amassing about $10 million for his use on the Seven Falls development. In these circumstances, the evidence was wholly sufficient to convict Vinson of the Count One conspiracy offense. 2. Counts Two and Nine of the Indictment charged Vinson with separate conspiracies to commit offenses against and to defraud the United States, in violation of 18 U.S.C. § 371. In order to prove a § 371 conspiracy, the prosecution must show the following: (1) an unlawful agreement between two or more people to commit a crime; (2) that the defendant “knowingly and willingly participated in that conspiratorial endeavor”; and (3) an overt act committed in furtherance of the conspiracy. See United States v. Singh, 518 F.3d 236, 252 (4th Cir. 2008). Here, the trial court instructed the jury on those very elements, as well as the alleged objects of the conspiracies. a. The alleged objects of the Count Two conspiracy offense — involving the BOA-related Plastics Plant Scheme, Check Fraud Scheme, Burnett Straw Loan, and Queens Gap Scheme — included fraud impairing the functions of the FDIC, plus the offenses of making false entries in bank records under 18 U.S.C. § 1005, misapplication of bank funds under 18 U.S.C. § 656, wire fraud affecting a bank under 18 U.S.C. § 1343, and bank fraud under 18 U.S.C. § 1344. In deeming Vinson guilty on Count Two, the jury found against him on each alleged object of the conspiracy offense, but needed to find only one. Because we conclude that the evidence was sufficient to sustain Vinson’s conviction as to several objects, we do not review the evidence as to all of them. With respect to the Plastics Plant Scheme, Vinson contends that the evidence “only showed an arm’s length transaction freely entered into by all participants” for the express purpose, as stated in the pertinent BOA credit memorandum, of “short-term-investment in Seven Falls.” See Br. of Appellant 32-33 (internal quotation marks omitted). Viewed in the proper light, however, the evidence established that Vinson utilized straw borrowers to obtain the plastics plant loan from" }, { "docid": "20735690", "title": "", "text": "an international transaction involving the proceeds of unlawful activity. See Cuellar v. United States, 553 U.S. 550, 553, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008). Finally, as to Count 29, § 1957(a) similarly requires the government to allege (and prove) a transaction involving funds derived from a specified unlawful activity. See United States v. Cherry, 330 F.3d 658, 668 (4th Cir.2003). In this case, the district court instructed the jury properly as to each offense, observing that, to sustain a conviction under Counts 27, 28, and 29, the government must prove beyond a reasonable doubt that Zhao engaged in monetary transactions that, inter alia, involved funds derived from the offense of trafficking in counterfeit goods or labels. (See J.A. 2430-37.) As the Supreme Court has explained, Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question ... fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Accordingly, “a verdict [is required] to be set aside in cases where the verdict is supportable on one ground, but not another, and it is impossible to tell which ground the jury selected.” Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). But see United States v. Hastings, 134 F.3d 235, 242 (4th Cir.1998) (“If [the] evidence is such that the jury must have convicted the defendant on the legally adequate ground in addition to or instead of the legally inadequate ground, the conviction may be affirmed.”). While it. is no doubt correct that the government adduced ample evidence tending to show that Zhao committed “pure” counterfeiting, neither the indictment, nor the evidence adduced at trial allow us to conclude that the jury necessarily convicted Zhao of money laundering based on the government’s" }, { "docid": "8502512", "title": "", "text": "denying his motion for judgment of acquittal with respect to Count Seven, possession and use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). He claims that sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a), which served as the predicate offense for his § 924(c) conviction, is not categorically a crime of violence. We agree. 1. As a preliminary matter, we must determine which standard of review applies. Ventura asserts that de novo review is appropriate in light of his general Rule 29 motion for judgment of acquittal. See United States v. Green, 599 F.3d 360, 367 (4th Cir.2010) (stating that the court reviews de novo the district court’s denial of a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure). He argues that a “broadly stated” motion for judgment of acquittal is “sufficient to preserve the full range of challenges, whether stated or unstated, to the sufficiency of the evidence.” United States v. Hammoude, 51 F.3d 288, 291 (D.C.Cir.1995). And, here, because sex trafficking by force, fraud, or coercion can never satisfy § 924(c)(3)’s definition of a crime of violence, there is insufficient evidence to support his conviction on Count Seven. The government, however, points out, correctly we think, that Ventura’s objection is not about factual or evidentiary sufficiency; rather, his argument is a purely legal one. As explained by the government, Ventura takes issue with the district court’s instruction to the jury regarding Count Seven — in particular, its instruction that sex trafficking by force, fraud, or coercion is categorically a crime of violence. And, because Ventura neither objected to the instruction nor argued that Count Seven is not categorically a crime of violence, his claim may be reviewed only for plain error. See, e.g., United States v. Tillery, 702 F.3d 170, 175 (4th Cir.2012) (“Because [the defendant] did not object to the jury instructions at trial, we review the instructions for plain error.”). The government’s analysis is the correct one. Ventura’s motion for judgment of acquittal," }, { "docid": "19529503", "title": "", "text": "195 ; Fed. R. Crim. P. 30(d). Even then, we will fix such error only if it \"seriously affects the fairness, integrity, or public reputation of judicial proceedings.\" Molina-Martinez v. United States , --- U.S. ----, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). Even if Spalding could satisfy plain-error's first two prongs, he would fail to show injury to his substantial rights. The wire-fraud statute and pattern instructions indeed mention \"false or fraudulent pretenses.\" 18 U.S.C. § 1343 (emphasis added); accord 5th Cir. Pattern Jury Instructions (Criminal) § 2.57 (2015). But right before it listed the elements of Count One specifically, the trial court instructed the jury on wire fraud generally. That general instruction included the missing \"false\" and stated that the government \"must [have] proved beyond a reasonable doubt ... that the Defendant knowingly devised or intended to devise a scheme by means of material false or fraudulent pretenses\" (emphasis added). Consider also that the government proved one over-arching scheme-the accusations differed only on the dates, victims, and means of interstate communication-and that the instructions on the other fraud counts mirrored the statute and pattern instructions, \"false pretenses\" and all. Spalding's substantial rights remained unscathed. B. The same plain-error prong resolves Spalding's next untimely argument. He says that the district court constructively amended the indictment on Count Three (the other wire-fraud charge) by changing the interstate-nexus element. But the district court instructed the jury not to consider that element because Spalding and the government \"stipulated that [it was] met.\" Spalding does not disavow that stipulation, so his substantial rights are intact. C. Spalding further faults the trial court for rejecting one of his proposed instructions on the false-testimony counts. He reprises his Bronston arguments, contending that the district court should have instructed that a \"literally true\" statement cannot be fraudulent. Cf. Bronston , 409 U.S. at 352-53, 93 S.Ct. 595. We review for abuse of discretion, United States v. Sheridan , 838 F.3d 671, 672 (5th Cir. 2016), and see" }, { "docid": "22336191", "title": "", "text": "been given. In fact, defense counsel requested that Eleventh Circuit Pattern Jury Instruction 13.1 (General Conspiracy Charge, 18 U.S.C. § 371) be used. Barrington’s failure to object to the instruction or submit an alternative instruction results in a waiver unless the instructions which were given constitute plain error. Fed. R. Cr. P 30(d); United States v. Belfast, 611 F.3d 783, 822 (11th Cir.2010). Before an error which was not raised below will be rectified, Barrington must establish (1) error, (2) that is plain, and (3) which affected his substantial rights. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1600, 179 L.Ed.2d 499 (2011). If those three conditions are met, we may exercise our discretion to correct the forfeited error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The jury was correctly instructed on the single conspiracy charged in Count One and the two objects of that conspiracy. Moreover, Barrington agreed to Count One being submitted to the jury as a violation of 18 U.S.C. § 371. There was no error, much less error giving rise to a likelihood of a miscarriage of justice or error which affected the fairness of the trial. Finally, Barrington contends that he was prosecuted on a “legally erroneous fraud theory.” Although his argument is not fully developed, he essentially contends that the grades which were changed do not constitute a property interest and therefore the Government’s proof did not establish the requisite financial deprivation un der the wire fraud statute, 18 U.S.C. § 1343. He argues that the jury “was permitted to convict the defendant merely on the theory that he sought to obtain grade changes.” We construe Barrington’s argument as a contention that the jury’s verdict on Count One rests on an insufficient legal theory. See United States v. Shotts, 145 F.3d 1289, 1293 n. 3 (11th Cir.1998). Notwithstanding that Barrington waived this contention by failing to raise it in the district court, we have reviewed for plain error. Finding no plain error, we affirm Barrington’s conviction on Count" }, { "docid": "22336198", "title": "", "text": "a specific individual.” 18 U.S.C. § 1028(d)(7); United States v. Mitchell, 518 F.3d 230, 234 (4th Cir.2008). The “overriding requirement” of the definition is that the means of identification “must be sufficient to identify a specific individual.” Mitchell, 518 F.3d at 234(internal quotation marks omitted). Clearly, the usernames and passwords, considered together, constituted a “means of identification” for those specific individuals and Barrington knew that. Flores-Figueroa, 129 S.Ct. at 1894 (“We conclude that § 1028A(a)(l) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person.”). In sum, the evidence was sufficient to support Barring-ton’s convictions for aggravated identity theft. There is no plain error. Next, Barrington contends that the district court erred (1) in failing to instruct the jury that the Government must prove that he “knowingly” used a means of identification that he knew “belonged” to another person and (2) failed to instruct the jury on the term “means of identification,” citing Flores-Figueroa v. United States, supra. We review for plain error because Barrington did not object to the district court’s instructions. Fed.R.Crim.P. 30(d); United States v. Belfast, supra; United States v. Sanchez, 269 F.3d 1250, 1280-81 (11th Cir.2001) (en banc), cert. denied, 535 U.S. 942, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002). The district court instructed the jury that it could find Barrington guilty “only if all of the following facts are proved beyond a reasonable doubt: First: That the defendant knowingly possessed a means of identification of another person; and Second: That the defendant possessed the means of identification without lawful authority; and Third: That the defendant possessed the means of identification during and in relation to a violation of Title 18, United States Code, Section 1343, namely wire fraud. While the district court did instruct the jury that Barrington must “knowingly” possess a means of identification, the court did not instruct the jury that Barrington must know that the identification belonged to another person or define the term “means of identification.” However, even assuming there was arguably plain error in the instructions, Barrington has not carried" }, { "docid": "22579642", "title": "", "text": "his post-trial motion for judgment of acquittal. Because the venue question was submitted to the jury, Ebersole’s appellate ■ contention is properly framed as an assertion that the court’s venue instruction on the wire fraud counts was flawed as a matter of law. Normally, Ebersole’s failure to specifically object to that instruction during the trial would constrain us to review its substance for plain error only. See Fed.R.Crim.P. 30(d). However, a claim of instructional error may alternatively be preserved by an objection in a directed verdict motion made pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, before the jury retires. See Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (citing Leary v. United States, 395 U.S. 6, 32, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969)). On June 16, 2003, at the same time that Ebersole moved at the close of the prosecution’s case-in-chief for judgment of acquittal on the FEMA-related false claim count, he also noted his “continuing objections over the venue for the rest of the charges.” In these circumstances, Eber-sole’s “continuing objections” can fairly be characterized as motions under Rule 29(a) for judgment of acquittal on each of the wire fraud counts, on the same grounds that Ebersole had articulated in his pretrial motion seeking dismissal of the indictment. Ebersole therefore preserved his particularized claim of error' — ie., that wire fraud does not constitute a “continuing offense” under § 3237(a) — with regard to the court’s venue instruction on the wire fraud counts. Accordingly, we review the content of that instruction for abuse of discretion. See United States v. Higgs, 353. F.3d 281, 309 (4th Cir.2003). By definition, a court “abuses its discretion when it makes an error of law.” United States v. Prince-Oyibo, 320 F.3d 494, 497 (4th Cir.2003) (internal quotation marks omitted). Contrary to Ebersole’s “continuing offense” contention, the venue instruction on the wire fraud counts did not constitute legal error, and, thus, the court did not abuse its discretion. That is, the court correctly identified wire fraud as a “continuing offense,” as defined in" }, { "docid": "22469816", "title": "", "text": "of fact was entitled to find Jeffers guilty of the firearm offense, and we reject this aspect of Jeffers’s appeal. C. Next, we assess Jeffers’s contention that the trial court erred in multiple respects in its instructions to the jury. First, Jeffers presents two challenges with respect to the instructions on the firearm offense, and we readily reject them. He also presents challenges concerning the conspiracy offense: that the court erred in instructing the jury on a single-conspiracy theory, to the exclusion of a multiple-conspiracy theory; that the court erred in permitting the jury to infer that Jeffers harbored consciousness of guilt because he sought to conceal himself after he was indicted; and that the court committed what is commonly called “Collins error” in its instructions on the conspiracy offense. We address in turn the various contentions of instructional error with respect to the conspiracy offense. A trial court’s jury instructions are reviewed for abuse of discretion. See United States v. Singh, 518 F.3d 236, 249 (4th Cir.2008). Of course, an error of law constitutes an abuse of discretion. See United States v. Basham, 561 F.3d 302, 326 (4th Cir.2009). In assessing the propriety of instructions, we will not reverse a conviction so long as the instructions, taken as a whole, adequately state the controlling legal principles. See United States v. Bolden, 325 F.3d 471, 486 (4th Cir.2003). 1. Jeffers maintains that—based on the evidence—the district court should have given the jury a multiple-conspiracy, as opposed to a single-conspiracy, instruction on Count One. More specifically, Jeffers claims that with a single conspiracy charged in Count One, and only multiple conspiracies shown by the trial evidence, the instructions created a prejudicial variance. Jeffers concedes, however, that he did not present this contention to the trial court, and that it is subject to plain error review only. To show plain error, Jeffers must identify an error that is plain and that substantially affects his rights. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We have heretofore explained that “[a] single conspiracy exists, when the" }, { "docid": "22878117", "title": "", "text": "the district court by a collateral challenge pursuant to 28 U.S.C. § 2255, rather than in the appellate court by direct appeal. United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.1994); United States v. Williams, 977 F.2d 866, 871 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992). III. For the foregoing reasons, we conclude that the supplemental jury instruction was proper. Additionally, we have considered Smith’s further assignments of trial error and find ■ them to be without merit. We therefore affirm Smith’s conviction. We also hold that the district court lacked jurisdiction to entertain Smith’s motion for a new trial and, on that basis, affirm its denial of that motion. Because his motion for a new trial was untimely, Smith’s arguments concerning ineffective assistance of counsel because of conflict of interest are properly heard only in a separate proceeding seeking collateral relief pursuant to 28 U.S.C. § 2255. Lastly, we conclude that the district court did not make sufficient factual findings of perjury to support its imposition of a two-level sentencing enhancement for obstruction of justice. We vacate the sentence imposed and remand for resentencing. SO ORDERED. . The government argues that because Smith failed to object below to the supplemental instructions we may not reverse unless the instructions constituted plain error. Fed.R.Crim.P. 52(b). Smith responds, in essence, that his failure to object should be excused because he \"was not given the opportunity to object\" that, he claims, Fed.R.Crim.P. 30 requires. We have noted before that \"Rule 30 is not implicated every time a trial judge comments in response to a jury inquiry or clarifies a previous instruction,” Horton, 921 F.2d at 547, and doubt that it applies here. In any event, because we conclude that the district court’s clarifying instructions did not constitute an abuse of discretion, we need not consider whether Smith's challenge should be reviewed under the more deferential plain error standard. . The district court in" }, { "docid": "17212369", "title": "", "text": "its discretion in deeming her motion untimely under Fed.R.Crim.P. 33(b)(2). French relies on United States v. Mack, 362 F.3d 597 (9th Cir.2004), and Rodgers v. Marshall, 678 F.3d 1149 (9th Cir.2012), neither of which compels a contrary conclusion. In Mack, we held that it was structural error to forbid a pro se defendant from cross-examining witnesses, making objections, or presenting a closing argument, even where the defendant was disruptive and contemptuous of the court. 362 F.3d at 601-03. And, while we held in Rodgers that a pro se defendant’s Sixth Amendment rights were violated where the district court denied his request to appoint counsel to assist him with a post-verdict motion, 678 F.3d at 1154, the Supreme Court later reversed this decision. Marshall v. Rodgers, — U.S. —, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013) (per curiam). The Supreme Court held that no such right was clearly established under its precedent. Id. at 1450-51. Thus, neither Mack nor Rodgers supports the proposition that the district court abused its discretion by refusing to grant French’s post-conviction motions “in the interest of justice.” IV. Sufficient Evidence Supported French’s Wire and Mail Fraud Convictions, but Not the Money Laundering Convictions Next, French contends that the district court should have granted her motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) because the evidence was insufficient to support her convictions. We review a district court’s denial of a Rule 29 motion de novo. United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir.2012). When assessing a sufficiency of evidence challenge, we must consider the evidence presented at trial in the light most favorable to the prosecution. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). We then ask “whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” Id. (alteration, citation, and internal quotation marks omitted). A. We first consider whether sufficient evidence supported French’s wire and mail fraud convictions. The elements of these offenses are (1) proof of a scheme" }, { "docid": "19064239", "title": "", "text": "F.3d 385, 396 n. * (4th Cir.2014) (noting that failure to present legal arguments and “record citations or pertinent legal authority supporting ... a claim” waives the claim). Although Appellant raised this issue in an interlocutory appeal in a related case — an appeal we dismissed for want of jurisdiction — this does not preserve the issue and is not sufficient to raise the issue now. To avoid waiver, a party must brief the issue in an appeal over which we may exercise jurisdiction. Thus, because Appellant fails to sufficiently raise this issue and has, therefore, effec tively waived it, we do not further address it. III. With these matters resolved, we turn to the two arguments at the core of this appeal. First and foremost, Appellant asserts that the district court’s jury instructions misstated fundamental principles of federal bribery law. Second, he asserts that the Government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act. We address each of these contentions in turn. A. Jury Instructions Appellant’s claim with respect to the jury instructions is that the court defined bribery far too expansively. “We review de novo the claim that a jury instruction failed to correctly state the applicable law.” United States v. Jefferson, 674 F.3d 332, 351 (4th Cir.2012). “[W]e do not view a single instruction in isolation, but instead consider whether taken as a whole and in the context of the entire charge, the instructions accurately and fairly state the controlling law.” United States v. Woods, 710 F.3d 195, 207 (4th Cir.2013) (internal quotation marks omitted). Even if, upon review, we find that the court misinstruct-ed the jury on an element of an offense, we may disregard the error as harmless. See United States v. Cloud, 680 F.3d 396, 408 n. 5 (4th Cir.2012); United States v. Ramos-Cruz, 667 F.3d 487, 496 (4th Cir.2012). “We find an error in instructing the jury harmless if it is ‘clear beyond a reasonable . doubt that a rational jury would have found the defendant guilty absent the error.’ ” Ramos-Cruz, 667" }, { "docid": "22342273", "title": "", "text": "139 F.3d 822, 838 (11th Cir.1998). ‘‘Where invited error exists, it precludes a court from invoking the plain error rule and reversing.” Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir.2002), cert. denied, 537 U.S. 1147, 123 S.Ct. 868, 154 L.Ed.2d 849 (2003) (internal citation and quotation marks omitted). See also United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir.2003) (finding that defendant whose counsel had affirmatively stipulated to the playing of a tape-recorded statement had invited any error resulting from the jury’s hearing the tape, and thus that the error was not reversible). Silvestri first argues that the evidence was insufficient to convict; and, second, that the omission from the jury instructions of the elements of two components of the conspiracy charged — the mail and wire fraud constituting the “specified unlawful activity” and the object of promotional money-laundering — constituted prejudicial error. After thorough review of the record and the parties’ briefs and oral arguments, we are persuaded that the evidence was sufficient to sustain the jury on all counts, and we decline to review the jury instructions because Silvestri invited any claimed error. B. Silvestri says that the evidence was insufficient to support his conviction for conspiring to launder money because the government failed to establish that he knew the funds from the Alliance/Chemical Trust program were proceeds of illegal fraud. More specifically, he claims that the government failed to prove either that he knew (1) U.S. Guarantee had insufficient assets to back up the bonds it had issued to guarantee the investors’ capital; or (2) Alliance/Chemical Trust was not le-. gitimately investing the investors’ funds. We are unpersuaded. “To support a conviction of conspiracy, the government must prove [1] that an agreement existed between two or more persons to commit a crime and [2] that the defendants knowingly and voluntarily joined or participated in the conspiracy.” United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983). See also Whitfield v. United States, — U.S. -, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (holding that conviction under 18 U.S.C. § 1956(h)" }, { "docid": "19529502", "title": "", "text": "persuasive. A. Spalding challenges his conviction on Count One because the district court omitted a word while listing wire-fraud's elements. The district court instructed that the jury could convict on that count only if \"the scheme to defraud described in Count One employed false material representations, material pretenses, or false material promises.\" Because the word, \"false,\" was missing before \"material pretenses,\" Spalding urges us to vacate that conviction. We ordinarily review jury instructions for abuse of discretion, examining whether \"the court's charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them.\" United States v. Kay , 513 F.3d 432, 446 (5th Cir. 2007) (quoting United States v. Daniels , 281 F.3d 168, 183 (5th Cir. 2002) ). But Spalding did not raise this objection below. So he must point out plain error-a high hurdle, as he must show a clear, obvious, and forfeited error affecting his substantial rights. See Gibson , 875 F.3d at 195 ; Fed. R. Crim. P. 30(d). Even then, we will fix such error only if it \"seriously affects the fairness, integrity, or public reputation of judicial proceedings.\" Molina-Martinez v. United States , --- U.S. ----, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). Even if Spalding could satisfy plain-error's first two prongs, he would fail to show injury to his substantial rights. The wire-fraud statute and pattern instructions indeed mention \"false or fraudulent pretenses.\" 18 U.S.C. § 1343 (emphasis added); accord 5th Cir. Pattern Jury Instructions (Criminal) § 2.57 (2015). But right before it listed the elements of Count One specifically, the trial court instructed the jury on wire fraud generally. That general instruction included the missing \"false\" and stated that the government \"must [have] proved beyond a reasonable doubt ... that the Defendant knowingly devised or intended to devise a scheme by means of material false or fraudulent pretenses\" (emphasis added). Consider also that the" }, { "docid": "1653438", "title": "", "text": "at least $4 million. B. Procedural History Following a three-week trial, a jury found Georgiou guilty of one count of conspiracy, in violation of 18 U.S.C. § 371, four counts of securities fraud, in violation of Section 10(b) of the Securities Exchange Act of 1934 (the “Act”), 15 U.S.C. §§ 78j(b) and 78ff, and four counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349. Georgiou was sentenced to 300 months’ imprisonment, and ordered to pay over $55 million in restitution. II. The District Court had jurisdiction under 15 U.S.C. § 78aa and 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). III. A. Extraterritorial Effect of United States Securities Law 1. Standard of Review For the first time on appeal, Georgiou argues that his securities fraud convictions are improperly based on an exterritorial application of United States law. He as serts that without proof that any securities transactions occurred in the United States, the jury lacked sufficient evidence upon which to convict him. He further asserts that the District Court erred in failing to require that the jury base it verdicts solely on domestic transactions. Georgiou relies on Morrison, which held that Section 10(b) of the Act only proscribes “deceptive conduct [made] ‘in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered.’ ” 561 U.S. at 266, 130 S.Ct. 2869 (quoting 15 U.S.C. § 788(b)). Because Georgiou raised neither argument below, we review for plain error. Fed.R.Crim.P. 52(b); Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1124-25, 185 L.Ed.2d 85 (2013); United States v. Riley, 621 F.3d 312, 321-22 (3d Cir.2010). A finding of “plain error” is warranted if: “(1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial" }, { "docid": "20598037", "title": "", "text": "will preserve.” United States v. Lentz, 383 F.3d 191, 222 (4th Cir.2004); see also Nicholson, 611 F.3d at 218. III. For the foregoing reasons, we affirm the convictions on all counts, vacate the sentence as procedurally unreasonable, and remand with instructions for further proceedings consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. . Appellant did not compensate Gifis, Glasser, or Lynch to produce these valuations. . Citations to the \"J.A.” refer to the Joint Appendix filed by the parties in this appeal. . After the district court repeatedly questioned a witness, the Government, outside the presence of the witness, explained \"given the Court’s comments and concerns about [the witness],” it ”want[ed] to be certain that the record is clear that we will raise these and object to those concerns when we feel they’re appropriate and raise it during cross-examination.” J.A. 2705. The Government'explained that it was protecting the record and that it was ”bring[ing] this up now in terms of the Court’s concerns and the Court’s questions of [the witness].” Id. . On September 11, 2013, the district court granted a motion for judgment of acquittal on one money-laundering count. . For instance, Appellant argues that the evidence presented at trial was insufficient to support his convictions for conspiracy, wire fraud, and mail fraud. We find that the evidence was clearly sufficient, and thus do not address this contention at length. . See, e.g., United States v. Cherry, 720 F.3d 161, 167-69 (4th Cir.2013); United States v. Ecklin, 528 Fed.Appx. 357, 363 (4th Cir.2013); United States v. Garries, 452 Fed.Appx. 304, 309-11 (4th Cir.2011) (per curiam); Murphy v. United States, 383 Fed.Appx. 326, 334 (4th Cir.2010) (per curiam); United States v. Dabney, 71 Fed.Appx. 207, 210 (4th Cir.2003) (per curiam). . Citations to the \"Supp. J.A.” refer to the Supplemental Joint Appendix filed by the parties in this appeal. WYNN, Circuit Judge, concurring: I concur in the majority opinion, including its holding that “although the district court’s interferences in this case went beyond the pale, in light of the plain error standard of review and the" } ]

[ { "docid": "254412", "title": "", "text": "river, water is equated and distributed for beneficial uses. The Rank v. Krug suit concerns the legal right to distribution of the -water impounded iti Millerton Lake in relation to certain water rights of claimants below the dam, and down to “Meudota Pool”, a stretch of about forty miles. The dam is the property of the United States and it, with the water back of it, is, and since the water has accumulated, has been in the possession of the United States and actually controlled by the United States under its claim of right. The plaintiffs’ claim in the Rank v. Krug action, briefly stated, is that they have the present right to a flow down the San Joaquin River between the named points and that those in charge of the dam and its outlets have and are preventing a sufficient amount of water to flow into the river to adequately supply their rightful beneficial uses. The project, the law by which it was initiated and constructed, the applicable water law of California and the issues involved in the Rank v. Krug action, may be found described and documented in Rank v. Krug, D.C.1950, 90 F.Supp. 773, in an opinion rendered by Judge Peirson M. Hall upon decision as to a motion for injunction pendente lite. See, also, United States v. Gerlach Live Stock Co., 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231. Insofar as it is useful to mention here, the defendants in the pending district court case of Rank v. Krug, being sued individually and officially are: Julius A. Krug, the then Secretary of the Interior of the United States; and the following persons holding the following offices in the United States Bureau of Reclamation, viz.: Michael W. Straus, Commissioner; Richard Boke, Regional Director; Martin Blote, Regional Water Master; Jack Rodner, District Manager; R. K. Durant, Construction Engineer and Resident Engineer; also named as defendants are: Madera Irrigation District and its Directors; Southern San Joaquin Municipal Utility District and its Directors; as well as various Doe districts and Doe directors. As is seen, the United States" } ]

[ { "docid": "15588513", "title": "", "text": "and act on thé assumption that the occupancy of the Arapahoes, who had been brought in with a show of military force on the part of the Government, was permanent and rightful. Subsequent recognition of the occupancy of the Arapahoes was ratified by act of Congress. It was held that this chain of events amounted to a taking or an appropriation of the rights of the Shoshone tribe as of the 1878 action of the Commissioner. The court said, 299 U.S. at page 497, 57 S.Ct. at page 251: “Power to control and manage the property and affairs of Indians in good faith for their betterment and welfare may be exerted in many ways and at times even in derogation of the provisions of a treaty. Lone Wolf v. Hitchcock, 187 U.S. 553, 564, 565, 566, 23 S.Ct. 216, 47 L.Ed. 299. The power does not extend so far as to enable the government ‘to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation; * * * for that “would not be an exercise of guardianship, but an act of confiscation.” ’ ” Here, as we have noted, Congress has never ratified the act of the Secretary in giving the Ahtanum waters to the white settlers. Of course, our holding that the Secretary acted within his powers means that we are giving to his conduct in this regard the same characteristics as an act of appropriation as that which was found to have been accomplished in Shoshone Tribe v. United States, supra. It is clear that the action of the district court in dismissing the appellánt’s suit was error. The suit, like other proceedings designed to procure an adjudication of water rights, was in its purpose and effect one to quiet title to realty. Rickey Land & Cattle Co. v. Miller & Lux, 9 Cir., 152 F. 11, 15, affirmed 218 U.S. 258, 31 S.Ct. 11, 54 L.Ed. 1032. It presented claims and issues which required the court to determine and adjudicate the extent of" }, { "docid": "18177245", "title": "", "text": "seeking to compel the defendants to release enough water from Friant Dam to preserve the fish resources in the San Joaquin River. Subsequently, the State abandoned its policy in regard to the fish upon the determination that the water was more beneficially useful for irrigation under the Central Valley Project. On August 3, 1951, California filed an amended complaint in which it opposed the issuance of an injunction compelling the release of water from Friant, and in which it prayed for a “physical solution” and suggested that plaintiffs should in any event be relegated to monetary damages. And on October 16, 1951, pursuant t.o an order of the district court, California filed a pleading, apparently as a party defendant, denominated “Intervenor’s Answer”. The City of Fresno and the Tranquility Irrigation District also intervened as parties-plaintiff. Prior to the completion of the trial and before judgment the district court issued a temporary injunction ordering the defendant officials to release specified amounts of water from Friant Dam. In response to a petition made by the United States Attorney this court restrained the enforcement of the temporary injunction pending the return of an order to show cause why an extraordinary writ should not be issued, and after hearing this court declared that it would issue the appropriate writ unless the district court within ten days withdrew its temporary injunction. This court acted upon the ground that the United States was in possession and in claimed legal control of the waters of the San Joaquin in Millerton Lake behind Friant Dam; and that this court’s appellate jurisdiction was threatened since the res of a potential appeal might be dissipated under the court’s order. United States v. U. S. Dist. Court, 9 Cir.1953, 206 F.2d 303. On August 12, 1953, the district court withdrew its temporary-mandatory injunction. In the meantime, on July 10, 1952, Congress enacted Title 43 U.S.C.A. § 666 granting consent to the joining of the United States in certain suits: § 666. “(a) Consent is given to join the United States as a defendant in any suit (1) for the adjudication of" }, { "docid": "18177255", "title": "", "text": "a writ of prohibition, mandamus or certiorari. By such petition California seeks a writ directing the district court to dismiss the actions of the City of Fresno and the Tranquility Irrigation District pending against the State. California further petitions that this court annul the order enjoining the United States as a party defendant in the case of Rank v. Krug, and requiring the State to sue the United States. The respondent court moves that the latter petition be dismissed. California argues that as a sovereign state it is immune from suits to which it has not consented, and that it has not consented to be sued in the courts of the United States. It further alleges that there is no cause of action, in the referred-to actions, which arises under the laws of the United States, and that there is a lack of diversity of citizenship between the parties to such actions, and that there is no ancillary relationship between Rank v. Krug and any property in which the State claims an interest. The State also raises the question of exhaustion of administrative remedies and contends that the present posture of Rank v. Krug is radically different from the case in which the State intervened. The State urges that our appellate jurisdiction would be aided by issuing the requested extraordinary writ since it would permit of a more prompt appeal in Rank v. Krug and would prevent unnecessary appeals in the “new suits allowed or ordered to be brought by the Respondent Court” [italics ours]. The State of California voluntarily joined Rank v. Krug as a party plaintiff. In its complaint the State asked for a “physical solution” of the San Joaquin River water dispute. A “physical solution” cannot be effectuated without first determining the rights of the various interested parties. The district court acted within the scope of its competency in determining that it has jurisdiction over the State of California and that the State should be a party to Rank v. Krug in order that the court’s adjudication of water rights should be complete. Whether or not that" }, { "docid": "15588514", "title": "", "text": "to render, just compensation; * * * for that “would not be an exercise of guardianship, but an act of confiscation.” ’ ” Here, as we have noted, Congress has never ratified the act of the Secretary in giving the Ahtanum waters to the white settlers. Of course, our holding that the Secretary acted within his powers means that we are giving to his conduct in this regard the same characteristics as an act of appropriation as that which was found to have been accomplished in Shoshone Tribe v. United States, supra. It is clear that the action of the district court in dismissing the appellánt’s suit was error. The suit, like other proceedings designed to procure an adjudication of water rights, was in its purpose and effect one to quiet title to realty. Rickey Land & Cattle Co. v. Miller & Lux, 9 Cir., 152 F. 11, 15, affirmed 218 U.S. 258, 31 S.Ct. 11, 54 L.Ed. 1032. It presented claims and issues which required the court to determine and adjudicate the extent of the rights of the parties with respect to the waters of the stream; a determination of the validity of the 1908 agreement did not call for the trial court’s conclusion that the United States had no interest whatever in the Ahtanum waters. Furthermore, as in the case of other suits to quiet title, the defendants should have been required to appear by answer and set forth their claims of right to the use of the waters of the stream. Reynolds v. Schmidt, 10 Cir., 40 F.2d 238, 240. In general, they did not do so. Thus the answer of Ahtanum Irrigation District and of “the above named defendant landowners, water users, lienholders and encumbrancers whose lands lie within the boundary of said district”, is wholly uninformative as to who these water users are, what lands they claim to have the right to irrigate, or how they deraign their titles to any water rights. In addition to admitting and denying certain allegations of the complaint, this answer contains only (1), a plea of laches on the" }, { "docid": "4716842", "title": "", "text": "case as members of the class. The total acreage of plaintiffs and their class is approximately 300,000 acres. The asserted rights of the City of Fresno and the Tranquillity Irrigation District, as named plaintiffs and members of the class of overlying owners entitled to underground supply and replenishment from the San Joaquin river, are not to be confused with the asserted rights of each of them under the second cause of action of each of their Complaints in Intervention, which will be dealt with later. All of the Irrigation Districts having contracts with the Bureau of Reclamation to release water from Friant dam, either by way of the Friant-Kern canal or by way of the Madera canal, were either joined as defendants, or came in voluntarily as Doe defendants, and filed answers to plaintiffs’ Complaint. There are 15 such Irrigation Districts having within them a total acreage of approximately 620,452 acres. The defendant officials of the United States filed answers to plaintiffs’ Complaint as then amended on October 15, 1951. After hearing, temporary restraining orders were made in August, 1951, and August, 1952, with the consent of all parties. These orders restrained the impounding of water by defendants to an extent not necessary to detail here, and were complied with. A pre-trial hearing was had, and a pretrial order was made in January, 1952. The trial of the case commenced in Fresno on January 29, 1952. It continued with interruptions until the close of the evidence on December 31, 1954, a few days short of three years after the trial commenced. Two extraordinary writ proceedings were had in the course of -the trial — one in 1953 as a result of a temporary restraining order made on April 24, 1953, with the specific consent of the Attorney General of the United States and the Secretary of the Interior, 9 Cir., 206 F. 2d 303, and the other in 1954, 9 Cir., 213 F.2d 818, as the result of an order dated January 30, 1954, denying a motion to dismiss the United States as a party after an order which joined" }, { "docid": "4717409", "title": "", "text": "5819 1928 Miller & Lux 1939 12/20/51 5820 1928 Miller & Lux 1939 12/20/51 5821 1928 Miller & Lux 1939 12/20/51 5822 1928 Miller & Lux 1939 12/20/51 9639 1938 Dept. Finance (e) 1939 12/20/51 10750 1944 United States 6/21/51 Applications filed by the City of Fresno 6771— 8/20/1930 6772— 8/20/1930 7134— 12/5/1931 7135— 12/5/1931 Fresno Irrigation District 6773 — 6/15/1930 (a) The application of Panoche was followed by a permit and license which was owned by Miller and Lux. It concerned a comparatively small amount of water in the vicinity of or below Mendota. (b) . This was an application by Madera Irrigation District to store and divert water for power purposes. The United States has filed no amendment to that application. (e) This application by the Department of Finance of the State of California was to store and divert water for power purposes at Temperance Flat, above Friant. No application to amend it has been made by the United States. (d) This application was for irrigation, et cetera, but the point of storage and diversion was Tempex-ance Flat. In the applications to amend filed by the United States, the point of storage and diversion was changed to Friant. ■(e) This application designated both.Temperance Flat and Friant as the points of diversion, which is sought to be changed to Friant only by the applications to amend filed by the United States." }, { "docid": "16219038", "title": "", "text": "245 F. 9, 26, where the court says: “As to the main question, this court has determined, by the case of Rickey Land & Cattle Co. v. Miller & Lux, 152 F. 11, 81 C. C. A. 207, that a suit of the nature here maintained is essentially one to quiet title to real property, and that it is local and not transitory. The Rickey Land & Cattle Company, in that case, set up cer tain rights in California that it claimed to the waters of the stream, and we held that its cross-complaint setting up such rights could not operate to defeat complainant’s cause, but only defensively, ‘and not to give the defendant a right to have its title also quieted in the state of California.’ Hawley, District Judge, in the same case, on the trial in the District Court, had this to say: “ ‘It (the court) cannot, by any decree which it may make in this suit, directly reach the dams, reservoirs, or ditches belonging to the defendant located entirely within the state of California.’ Miller & Lux v. Rickey (C. C.) 127 F. 573, 575. “In this expression of the law we concur. But has the plaintiff no remedy where a defendant has been personally served and appears in the court, and is enjoined forever from doing certain things in another state to the detriment of plaintiff’s rights? The authorities are clear that he has. Such a remedy was sustained in the Rickey Land & Cattle Co. Case, supra.” In Miller & Lux v. Rickey, supra, and in Rickey Land & Cattle Co. v. Miller & Lux, supra, the identical land and waters of the Walker River basin here involved were in controversy. The language used and the holding of the last-mentioned case are peculiarly apposite to the case at bar. The court in 152 F. 11, at pages 17, 18, says: “The appellant’s counsel maintain that, because the appellant has set up in its answer and cross-bill to the original suit that it has an appropriation in California for the purpose of irrigating lands in" }, { "docid": "4716843", "title": "", "text": "were made in August, 1951, and August, 1952, with the consent of all parties. These orders restrained the impounding of water by defendants to an extent not necessary to detail here, and were complied with. A pre-trial hearing was had, and a pretrial order was made in January, 1952. The trial of the case commenced in Fresno on January 29, 1952. It continued with interruptions until the close of the evidence on December 31, 1954, a few days short of three years after the trial commenced. Two extraordinary writ proceedings were had in the course of -the trial — one in 1953 as a result of a temporary restraining order made on April 24, 1953, with the specific consent of the Attorney General of the United States and the Secretary of the Interior, 9 Cir., 206 F. 2d 303, and the other in 1954, 9 Cir., 213 F.2d 818, as the result of an order dated January 30, 1954, denying a motion to dismiss the United States as a party after an order which joined the United States as a party defendant under the Act of July 10,1952, 43 U.S.C.A. § 666. No writs were issued in either proceeding. And no stays were ordered but out of respect to the appellate court, this Court took no action during either of the writ proceedings. Motions of Tranquillity Irrigation District and the City of Fresno to file separate complaints in intervention were first put off calendar, but, on renewal during the trial, were granted as to the second cause of action of each. After the decision by the Appellate Court in August, 1954, in the second writ proceeding, the plaintiffs, the intervenor City of Fresno, and the intervenor Tranquillity Irrigation District, each on order after notice and motion, filed two separate documents, a “Supplemental Complaint” and an “Amendment and Supplement to Complaint.” After due and regular service thereof, and upon due and regular notice, the Court on November 18, 1954, made its order reopening the trial and setting a date therefor. D.C., 16 F.R.D. 310. The Order, among other things, provided that" }, { "docid": "4716801", "title": "", "text": "INDEX BY TOPICS Page I. Preliminary statement............................................... 36 II. General geographical & physical features.............................. 39 III. History of litigation................................................. 49 IV. The parties.............................'............................ 53 V. The pleadings ...................................................... 54 VI. Jurisdiction of (1) subject matter (2) defendant officials (3) defendant districts ............................... 62 VII. Jurisdiction of the State of California.................'................ 66 VIII. Jurisdiction of the United States...................................... 69 IX. Default against United States........................................ 85 X. Eminent domain .................................................... 89 XI. Water rights under California law — general...........................104 XII. California water rights of plaintiffs....................................115 XIII. California water rights of defendants.................................. 116 (a) Purchase & exchange contracts................................. 117 (b) Change of point of diversion.................................... 117 (c) Applications to appropriate held by the United States............. 121 (d) Prescription .................................................. 125 (e) Laches ....................................................... 128 (f) Estoppel .......................... 128 (g) Public use ................................................... 130 XIV. Watershed and county of origin statutes...............................149 XV. Class action ........................................................ 154 XVI. Election of remedies — Tucker Act.................................... 159 XVII. Inadequacy of remedy at law......................................... 160 XVIII. Physical solution & form of judgment.................................. 161 XIX. Injunctive relief against United States................................ 175 XX. Tranquillity Irrigation District........................................176 XXI. City of Fresno...................................................... 178 (a) Complaint in intervention...................................... 178 (b) Ancillary proceedings ......................................... 178 HALL, District Judge. I. Preliminary Statement. This is a water rights case. One phase or another of it has been considered in five reported opinions, viz.: Rank v. Krug, D.C., 90 F.Supp. 773, United States v. United States District Court, etc., 9 Cir., 206 F.2d 303, State of California v. United States District Court, etc., 9 Cir., 213 F.2d 818, Rank v. United States, D.C., 16 F.R.D. 310, and City of Fresno v. Edmonston, D.C., 131 F.Supp. 421. In view of the number of cases considered by the court in this opinion, and the fact that many of them are cited to several propositions, and to alleviate the frustrating use of the conventional “supra” and “post,” an alphabetical index of cases is attached as Appendix “A,” page 187. This opinion is long. There is repetition in it. But these things are necessitated in order to have a proper understanding of the numerous legal and factual matters involved, many of" }, { "docid": "4717408", "title": "", "text": "expert, Mr. Charles H. Lee, and Mr. Leland Hill, the principal expert for the defendants, accompany the Court to the area for the purpose of aiding the Court in finding the precise location on the ground of the various dam sites, and again inspecting and viewing the sites of the dams on the ground. All counsel consented, and the inspection trip down the river was made by the Court with said engineers on May 24, 1956. No additional evidence was taken on the trip. All dam sites except Nos. 13 and 14 of plaintiffs’ plan were again inspected and viewed by the Court. . Applications held by the United Stater Application Tear Number Filed Name of Applicant Date Assgd. to U.S. Date Applcn. amend, by U.S. 23 1915 Panoche (a) 1939 12/20/51 234 1916 Madera 1939 12/20/51 1465 1919 Madera 1939 12/20/51 2792 1922 Madera (b) 1939 5637 1927 Dept. Finance (c) 1939 5638 1927 Dept. Finance (d) 1939 ■ 12/20/51 5817 1928 Miller & Lux 1939 12/20/51 5818 1928 Miller & Lux 1939 12/20/51 5819 1928 Miller & Lux 1939 12/20/51 5820 1928 Miller & Lux 1939 12/20/51 5821 1928 Miller & Lux 1939 12/20/51 5822 1928 Miller & Lux 1939 12/20/51 9639 1938 Dept. Finance (e) 1939 12/20/51 10750 1944 United States 6/21/51 Applications filed by the City of Fresno 6771— 8/20/1930 6772— 8/20/1930 7134— 12/5/1931 7135— 12/5/1931 Fresno Irrigation District 6773 — 6/15/1930 (a) The application of Panoche was followed by a permit and license which was owned by Miller and Lux. It concerned a comparatively small amount of water in the vicinity of or below Mendota. (b) . This was an application by Madera Irrigation District to store and divert water for power purposes. The United States has filed no amendment to that application. (e) This application by the Department of Finance of the State of California was to store and divert water for power purposes at Temperance Flat, above Friant. No application to amend it has been made by the United States. (d) This application was for irrigation, et cetera, but the point of storage" }, { "docid": "4717372", "title": "", "text": "68 ditto October 620 40 ditto November 445 40 ditto December 372 28 ' ditto (a) The Chowchilla right is described in full in the contract; it varies between 60 and 120 second-fcot. . California Civil Code § 1412 until its repeal in 1943, and California Water Code, §§ 1701-1706 inclusive since 1943. . By a contract made in May, 1939, the Madera Irrigation District transferred to the United States the property comprising the Friant dam site as well as certain gravel lands lying below Friant, and also whatever rights it had to the use of water in the river, giving to the United States, as against said District only, the right to impound, store and divert the water. The contract specifically covered an assignment of applications to appropriate water — Applications No. 234 filed January 19, 1916, No. 1465 filed September 26, 1919, and No. 2792 filed March 31, 1922. In a final judgment in case No. 25729 of the Superior Court, in and for the County of Fresno, known as the Haynes decree, Miller & Lux was adjudicated to have the right of the entire flow of the river delivered to them as against any rights claimed by the Madera Irrigation District in Applications Nos. 284 and 1465. That decree also provided that as against the riparian rights of Miller & Lux, the right of the Madera Irrigation District by virtue of said applications was to divert only the extraordinary or unusual flow of the waters in the river which were defined to be a flow in excess of 20,000 cubic feet per second at any time, or in excess of 3,000,000 acre-feet in any one year as the river would flow in its natural condition unaffected by storage by the Power Companies or by the diversions up the river. . In addition to the applications, there was assigned to the United States by Miller and Lux the permit and license issued on Application No. 23 to Panoche Water Association for diversion of a small amount of water in the vicinity of or below Mendota. What is said" }, { "docid": "18177259", "title": "", "text": "delay in the Central Valley Project. The Supreme Court of the United States has made it clear that inconvenience and delay are not sufficient grounds for the issuance of an extraordinary writ. The respondent court asks that the petition for the issuance of an extraordinary writ be dismissed. On the whole, the arguments of petitioners may or may not be valid defenses to the complaints in Rank v. Krug. And if properly raised those issues may be considered by us on appeal. But the questions here presented are not sufficient to invoke the exercise of our power to issue extraordinary writs. The petitions are dismissed. . See United States v. United States District Court, 9 Cir., 1953, 206 F.2d 303. See also Rank v. Krug, D.C.S.D.Cal.1950, 90 F.Supp. 773. . 9th Circuit Docket No. 14244. . 9th Circuit Docket No. 14243. . (9th Circuit Docket No. 14284): Chow-chilla Water District, Delano-Earlimart Irrigation District, Exeter Irrigation District, Ivanhoe Irrigation District, Lindmore Irrigation District, Lindsay-Strathmore Irrigation District, Lower Tule River Irrigation District, Madera Irrigation District, Orange Cove Irrigation District, Porterville Irrigation District, Saucelito Irrigation District, Stone Corral Irrigation District, Terra Bella Irrigation District, and Tulare Irrigation District. . 9th Circuit Docket No. 14284. . For a fuller statement of the facts see United States v. United States District Court, 9 Cir., 1953, 206 F.2d 303; Rank v. Krug, D.C.S.D.Cal.1950, 90 F.Supp. 773; see also, United States v. Gerlach, Live Stock, 1949, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231. . Case No. 74627, Department 4 of the Superior Court of the State of California in and for the County of Fresno, by Everett G. Rank, Duane M. Folsom, Bertha Folsom, E. Florence Folsom, Evelyn Lydia Rank, J. E. Cobb, Ruby Cobb, Lawrence D. Cobb, Marjorie E. Sims, L. L. Howard, Alma Howard, and Amelia Ann Holland, Plaintiffs v. Julius A. Krug, as Secretary of the Interior of the United States of America, Michael W. Straus, as Commissioner of the Bureau of Reclamation of the United States of America, Richard Boke, as Regional Director of the Bureau of Reclamation of the United" }, { "docid": "12556350", "title": "", "text": "or that Fresno does not appreciate the distinction we draw between vested rights to natural flow and rights to project water: Hence the following elaboration upon our opinion. It may well be that Fresno, under California law, has preferred rights to additional natural flow. If and when such rights have been established in accordance with state law, Fresno may be able effectively to protest the impounding of waters by these defendants in contravention of such rights. But this is speculation upon future events and future issues and decision must await the occurrence and the dispute. The judgment of the district court, which we reversed in this respect and to which Fresno’s petition for rehearing is directed, did not appear to relate to Fresno’s right to natural flow, however. It appeared to relate to Fresno’s right to project water. If Fresno is to have such water or is to enjoy the benefits of Friant storage or the delivery service of the United States, the terms upon which it may do so are not (for the reasons expressed in our opinion) appropriate issues in this action against the individual officers of the bureau. . Also intervening as plaintiff was the Tranquility Irrigation District. This court is now advised that the dispute between this irrigation district and the Bureau of Reclamation has been resolved by agreement and no longer constitutes an issue upon appeal. . The opinion of the district court is to be found under the title of Rank v. (Krug) United States, D.C.1956, 142 F.Supp. 1. Connected cases dealing with intermediate orders of the district court are: Rank v. Krug, D.C.1950, 90 F.Supp. 773; United States v. United States District Court, 9 Cir., 1953, 206 F.2d 303; State of California v. United States District Court, 9 Cir., 1954, 213 F.2d 818; Rank v. United States, D.C.1954, 16 F.R.D. 310; City of Fresno v. Edmonston, D.C.1955, 131 F.Supp. 421. Also involving the Central Valley Project but not these litigants or their disputes are United States v. Gerlach Live Stock Company, 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231, affirming the" }, { "docid": "18177256", "title": "", "text": "also raises the question of exhaustion of administrative remedies and contends that the present posture of Rank v. Krug is radically different from the case in which the State intervened. The State urges that our appellate jurisdiction would be aided by issuing the requested extraordinary writ since it would permit of a more prompt appeal in Rank v. Krug and would prevent unnecessary appeals in the “new suits allowed or ordered to be brought by the Respondent Court” [italics ours]. The State of California voluntarily joined Rank v. Krug as a party plaintiff. In its complaint the State asked for a “physical solution” of the San Joaquin River water dispute. A “physical solution” cannot be effectuated without first determining the rights of the various interested parties. The district court acted within the scope of its competency in determining that it has jurisdiction over the State of California and that the State should be a party to Rank v. Krug in order that the court’s adjudication of water rights should be complete. Whether or not that determination was erroneous may properly be raised only on appeal. We do not agree with California’s suggestion that the issuance of an extraordinary writ would aid our jurisdiction in Rank v. Krug. The petition for an extraordinary writ is dismissed. Petition of “Chbwehilla” et al. Water Districts The Chowchilla, and certain other water and irrigation districts, all of which are beneficiaries of the water impounded by the United States behind Friant Dam under contracts entered into between them and the United States, petitioned this court for writs of prohibition and mandamus. They ask us to prohibit the district court from proceeding further against them in Rank v. Krug and to direct the district court by writ of mandamus to dismiss the proceedings against them. They urge as grounds for the granting of their petitions the district court’s lack of jurisdiction based upon the following allegations: There is no diversity of citizenship between the plaintiffs, the City of Fresno, the Tranquility Irrigation District, and petitioners; there is no federal question; and there is no jurisdiction to" }, { "docid": "12556351", "title": "", "text": "expressed in our opinion) appropriate issues in this action against the individual officers of the bureau. . Also intervening as plaintiff was the Tranquility Irrigation District. This court is now advised that the dispute between this irrigation district and the Bureau of Reclamation has been resolved by agreement and no longer constitutes an issue upon appeal. . The opinion of the district court is to be found under the title of Rank v. (Krug) United States, D.C.1956, 142 F.Supp. 1. Connected cases dealing with intermediate orders of the district court are: Rank v. Krug, D.C.1950, 90 F.Supp. 773; United States v. United States District Court, 9 Cir., 1953, 206 F.2d 303; State of California v. United States District Court, 9 Cir., 1954, 213 F.2d 818; Rank v. United States, D.C.1954, 16 F.R.D. 310; City of Fresno v. Edmonston, D.C.1955, 131 F.Supp. 421. Also involving the Central Valley Project but not these litigants or their disputes are United States v. Gerlach Live Stock Company, 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231, affirming the decision of the Court of Claims, 1948, 76 F.Supp. 87, 111 Ct.Cl. 1; Ivanhoe Irrigation District v. McCracken, 1958, 357 U.S. 275, 78 S.Ct. 1174, 2 D.Ed.2d l313. . “That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws * * . Article 14, § 3, of tlie California Constitution provides: “The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable" }, { "docid": "4717371", "title": "", "text": "of rights by an appropriator when be ceases to put the water to reasonable and beneficial uses by reasonable methods of diversion and use. See Water Code, Sections 1240 and 1241, and former Civil Code Section 1411. . The quantity of water thus needed will be dealt with under the heading “Physical Solution.” . Covering the Herminghaus lands, the riparian rights to which were adjudicated in Herminghaus v. Southern California Edison Co., supra. . Described in United States v. Gerlach Live Stock Co., 339 U.S. 725, at page 742, 70 S.Ct. 955, 94 L.Ed. 1231, as a “strange transaction.” . The schedule for measurements at Whitehouse in second-feet, decreased, by the upstream diversions of the Miller and Lux Canal Companies, as set forth in the contract, is as follows: Month : Schedule 1 : Schedule 2 January 372 28 plus Chowchilla Canal Water Right (a) February 495 40 ditto March 1,242 68 ditto April 1,837 113 ditto May 2,144 141 ditto June 2,291 159 ditto July 2,310 159 ditto August 2,099 111 ditto September 1,207 68 ditto October 620 40 ditto November 445 40 ditto December 372 28 ' ditto (a) The Chowchilla right is described in full in the contract; it varies between 60 and 120 second-fcot. . California Civil Code § 1412 until its repeal in 1943, and California Water Code, §§ 1701-1706 inclusive since 1943. . By a contract made in May, 1939, the Madera Irrigation District transferred to the United States the property comprising the Friant dam site as well as certain gravel lands lying below Friant, and also whatever rights it had to the use of water in the river, giving to the United States, as against said District only, the right to impound, store and divert the water. The contract specifically covered an assignment of applications to appropriate water — Applications No. 234 filed January 19, 1916, No. 1465 filed September 26, 1919, and No. 2792 filed March 31, 1922. In a final judgment in case No. 25729 of the Superior Court, in and for the County of Fresno, known as the Haynes decree," }, { "docid": "4717274", "title": "", "text": "to such rights is sought therein and in the third cause of action of the Complaint in Intervention. By the applications to appropriate water, the City of Fresno is not seeking the protection of a vested property right such as its prescriptive, or appropriative, or overlying right, but is seeking tó obtain a future right to the use of water, as is the United States by the applications which have been assigned to it. The conflict is solely one of priority of right under the law of California. Applications by various organizations and entities to appropriate water at Fri-ant have been on file with the State for many years. All, except those filed by the City of Fresno and one filed by the Fresno Irrigation District, have been assigned to the United States. Pertinent data as to all of them are set forth in Footnote 108. Although the applications of all parties had been pending since from 1916 to 1938, as heretofore noted, no hearing was ever called or set by the State on them until December 31, 1954 — from 16 to 38 years after the applications were filed. Notwithstanding the requirements of the Federal Reclamation laws and the repeated assurances to Congress, and generally, that it would abide and respect California laws, the United States proceeded to build the dam and canals, store, divert and sell water of the San Joaquin river at and from Friant, without any permit or license to do so as required by the State laws. It constructed the Friant project, and conducted the operations thereof as if it were the absolute owner of the water and the right to use it — which it is not, and has never been. Neither the United States nor the City of Fresno nor the Fresno Irrigation District have any rights to impound or divert water from the San Joaquin river at Friant under the California Water law until a permit is granted. Without obtaining such permits to appropriate water, an applicant cannot acquire valid rights to appropriate water of the San Joaquin river. At the time" }, { "docid": "4716802", "title": "", "text": "District........................................176 XXI. City of Fresno...................................................... 178 (a) Complaint in intervention...................................... 178 (b) Ancillary proceedings ......................................... 178 HALL, District Judge. I. Preliminary Statement. This is a water rights case. One phase or another of it has been considered in five reported opinions, viz.: Rank v. Krug, D.C., 90 F.Supp. 773, United States v. United States District Court, etc., 9 Cir., 206 F.2d 303, State of California v. United States District Court, etc., 9 Cir., 213 F.2d 818, Rank v. United States, D.C., 16 F.R.D. 310, and City of Fresno v. Edmonston, D.C., 131 F.Supp. 421. In view of the number of cases considered by the court in this opinion, and the fact that many of them are cited to several propositions, and to alleviate the frustrating use of the conventional “supra” and “post,” an alphabetical index of cases is attached as Appendix “A,” page 187. This opinion is long. There is repetition in it. But these things are necessitated in order to have a proper understanding of the numerous legal and factual matters involved, many of which are complex, and several are important questions of first impression. In view of the contentions made by some of the defendants at various times throughout the trial and related proceedings, it is well to state at the outset, as a reminder to the parties that this court has neither -the desire nor the power to question the wisdom, of any of the applicable Acts of Congress or of the laws of the State of California relating to the Central Valley plan or project or any unit of it, and that this suit is but an invocation of the powers confided by the Constitution and laws to the judicial department of the government to interpret and apply the applicable law to the issues raised by the pleadings and the evidence. Such relief in the form of a judgment as may be found necessary is but the usual exercise of the judicial power, though it may thereby restrict the conduct of the government and its officers to that which is judicially determined to be lawful and" }, { "docid": "16219037", "title": "", "text": "recently modified by a constitutional amendment, hereinafter quoted and discussed. The amendment having been passed under and by virtue of a reasonable exercise of the police power, constitutes a lawful abridgment of the riparian right. Tulare Irrigation District et al. v. Lindsay-Strathmore District, 45 P.(2d) 972, decided by the California Supreme Court May 3, 1935. Nevada, a desert-land state, -necessarily clings to the arid region doctrine of appropriation. The defendants having appeared in this suit and submitted themselves to the jurisdiction, all of the rights of the parties are before the court. An interesting .question of law arises under the circumstances here disclosed. It has been suggested that this court has not jurisdiction to make a decree in rem affecting the land and water rights outside of the state of Nevada, citing Miller & Lux v. Rickey (C. C.) 127 F. 573, 575, 580 (an outgrowth of case No. 731, referred to above). The point is discussed in Vineyard Land & Stock Co. v. Twin Falls S. R. L. & W. Co. (C. C. A.) 245 F. 9, 26, where the court says: “As to the main question, this court has determined, by the case of Rickey Land & Cattle Co. v. Miller & Lux, 152 F. 11, 81 C. C. A. 207, that a suit of the nature here maintained is essentially one to quiet title to real property, and that it is local and not transitory. The Rickey Land & Cattle Company, in that case, set up cer tain rights in California that it claimed to the waters of the stream, and we held that its cross-complaint setting up such rights could not operate to defeat complainant’s cause, but only defensively, ‘and not to give the defendant a right to have its title also quieted in the state of California.’ Hawley, District Judge, in the same case, on the trial in the District Court, had this to say: “ ‘It (the court) cannot, by any decree which it may make in this suit, directly reach the dams, reservoirs, or ditches belonging to the defendant located entirely within the" }, { "docid": "4717316", "title": "", "text": "Bros. Const. Co. v. Yankton County, S.D., 8 Cir., 1931, 54 F.2d 304 Yuba River Power Co. v. Nevada Irr. District, 1929, 207 Cal. 521, 279 P. 128 Appendix “B” United States District Court Southern District of California Northern Division Filed Jan. 22,1952 Everett G. Rank, et al., Plaintiffs, v. Julius A. Krug, as Secretary of the Interior, et al., Defendants. No. 685-ND Civil Order A second pretrial conference having been held on January 15, 16 and 17, 1952, at Los Angeles, California, the Honorable Peirson M. Hall, District Judge, presiding, and all parties who have appeared herein being represented by their respective counsel, and plaintiffs having filed, in response to Paragraph 4 of the Order made herein December 20th, 1951, a map entitled, “Outline Map San Joaquin River Bottoms and Lands Neighboring the River in Madera and Fresno Counties,” and said map having been introduced and marked “Plaintiffs’ Exhibit 1-52-1,” and a written statement setting out the method and character of proof as to certain matters, which statement was introduced and marked “Plaintiffs’ Exhibit 1-52-2,” and intervener State of California having presented a written statement and map entitled “Data on Lands Along San Joaquin River from Friant to Gravelly Ford Canal, Formerly Owned by Miller and Lux, Inc., Sold With Various Clauses of Water Rights Exceptions and Reservations in the Deeds and Land Sale Contracts,” and said statement and map having been introduced and marked “Intervener’s Exhibit 1-52-A,” and the motions of City of Fresno, a municipal corporation, Tranquillity Irrigation District, an irrigation district, and Emil Schramm; for leave to file their respective complaints in intervention having been made and argued, and good cause appearing therefor, Now, Therefore, It Is Ordered: 1. That said motions of City of Fresno, Tranquillity Irrigation District and Emil Schramm are ordered off calendar, to be re-set for further hearing upon notice and upon further order of the Court; 2. That pursuant to stipulation of the parties, Intervener’s Exhibit 1-52-A is accepted as evidence of the matters which it purports to show, subject to exception, amendment or amplification pursuant to written statement filed by" } ]

[ { "docid": "6948578", "title": "", "text": "94 S.Ct. at 2982) and that the underlying constitutional concepts will be subject to reevaluation as changes in prison discipline evolve. I. “Privileges” Our prior opinion extended the due process protections therein described “[e]ven [to] a temporary suspension of ‘privileges,’ by restricting the prisoner’s activities to a greater extent than the general- prison population . . . .” (497 F.2d at 815.) Because the Court in Wolff suggested that the due process procedures it commanded might not be required in proceedings involving “lesser penalties such as the loss of privileges” (418 U.S. at 571, 94 S.Ct. at 2982, n. 19) we reconsider the point. Any deprivation of the small store of “privileges” accorded a confined or relatively confined group causes a far greater sense of loss than a similar deprivation in a free setting, as anyone can attest who has been a student in a strict boarding school, a sailor aboard ship, a combat soldier, or a prisoner in time of war or peace. Within prison walls, the denomination “privileges” can encompass a host of matters, ranging from simple amenities through such' cherished concerns as access to visitors, schooling, recreation, and institutional employment. Grievousness of the loss depends upon the nature and extent of the privileges withdrawn for disciplinary purposes and upon the circumstances and makeup of the prisoner who suffers the loss. Deprivation of the more highly valued privileges can have as debilitating an effect on the amenability of a prisoner to rehabilitation as the loss of some good-time credit or a period of isolation from the general prison population. We therefore believe that some process is due to prisoners whose privileges are to be removed. Because the severity of the loss of privileges depends on multiple variables, we do not purport to draw a detailed constitutional blueprint governing the removal of privileges for disciplinary purposes. Process due can and should be flexible to meet the exigencies of the situation. We require only that any plan establishing disciplinary procedures attending withdrawal of privileges embrace at least these due process mini-ma: A prisoner subject to removal of one or more" } ]

[ { "docid": "13199805", "title": "", "text": "realistically faces a punishment that is atypical under Sandin, a precaution that would render the actual punishment rule perfectly workable.” Scott, 138 F.3d at 478. The Supreme Court in Wolff had no difficulty in recognizing the significant hardships of isolation. See Wolff, 418 U.S. at 571, n. 19, 94 S.Ct. 2963 (Solitary confinement “represents a major change in the conditions of confinement.”). The dissent in Hewitt, written by Justice Stevens, the advocate of the grievous loss approach of Goldberg, also concluded that the conditions of solitary confinement, similar to the conditions now in New York, were a “drastic” and “severe” impairment of the inmate’s life in prison and triggered the protection of the due process clause of the Constitution. Hewitt, 459 U.S. at 487-88, 103 S.Ct. 864. The Sandin majority, however, did not perceive the conditions of segregation in Hawaii for thirty days to impose an atypical or significant hardship. See Sandin, 515 U.S. at 494, 115 S.Ct. 2293 (Breyer, J., dissenting) (“The punishment [SHU] worked a ... major change in Conner’s conditions____Conner, for 30 days, had to spend his entire time alone in his cell (with the exception of 50 minutes each day on average for brief exercise and shower periods, during which he nonetheless remained isolated from other inmates and was constrained by leg irons and waist chains).”). As noted, however, Sandin dealt with an isolation limited to thirty days, and the Supreme Court’s analysis gave equal weight to both the relatively short duration of the confinement and the similarity of its conditions to non-punitive segregated confinements in Hawaii. As also noted, the Second Circuit recently in Wright and Brooks underscored the importance of considering the duration of confinement to the Sandin analysis. The effect of prolonged isolation on inmates has been repeatedly confirmed in medical and scientific studies. Dr. Stuart Grassian, a board certified psychiatrist, researcher and teacher, has submitted an affidavit that chronicles the extensive literature, studies and observations of the psychological effects on inmates of prolonged solitary confinement. Dr. Grassian explains: The restriction of environmental stimulation and social isolation associated with confinement in solitary are" }, { "docid": "7796941", "title": "", "text": "“a prisoner is not wholly stripped of constitutional protections when he is imprisoned for [a] crime,” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), it was not clearly established — indeed it was open to real doubt— that prisoners had a right to due process before being transferred from a general prison population to a confinement like administrative segregation. That doubt arose from the Supreme Court’s companion decisions in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), and the First Circuit’s application of those cases in Daigle v. Hall, 564 F.2d 884 (1st Cir. 1977). In Meachum, the Supreme Court reviewed a First Circuit decision that a transfer from a medium- to a maximum-security prison triggers due process protections because it subjects the prisoner to a more restrictive confinement. The Supreme Court reversed, holding that inter-prison transfers within a state do not trigger due process requirements, even if the prisoner is transferred to a tighter-security prison with greater restrictions on freedom and privileges, so long as state law or practice do not condition such transfers upon the occurrence of some specific event. The Court explained: “Confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules. * * * [T]o hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” 427 U.S. at 225, 96 S.Ct. at 2538 (emphasis original). The First Circuit decision reviewed in Meaehum had not distinguished between transfers" }, { "docid": "6063868", "title": "", "text": "1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). In considering the issues before us, it will be helpful to deal separately with each of the three categories of alleged due process violations. 1. Concerning the alleged denial of Wolff rights at the Adjustment Committee Proceeding, appellants first contend that Bolden’s entitlement to such rights had not been clearly established by June 1982. They also contend that the 1983 Supreme Court decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), established that Wolff rights are not constitutionally required in connection with interim confinement pending disciplinary proceedings. Since we are to apply the law now in effect to this appeal pending on direct review, see Bradley v. School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), we must consider the application of Helms to appellants’ liability. In Hewitt v. Helms, supra, the Supreme Court relaxed the due process requirements for prison inmates placed in restrictive confinement for “administrative” as contrasted with “disciplinary” purposes. Helms, an inmate in a Pennsylvania prison, was confined to administrative segregation without benefit of Wolff rights while his role in a prison riot was investigated. Prison officials cited threats to security as well as the ongoing investigation as reasons for prolonging Helms’ administrative segregation. The Supreme Court held that the confinement did not violate the Fourteenth Amendment. Recognizing “that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests,” Hewitt v. Helms, supra, 459 U.S. at 467,103 S.Ct. at 869, the Court held that, unless state law created a liberty interest in remaining in the general prison population, administrative confinement is not subject to due process protection. Even where statutes create a liberty interest in remaining in the general prison population, however, Helms held that an inmate confined for administrative reasons need receive only minimal due process rights — “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding" }, { "docid": "14888072", "title": "", "text": "the conditions of his work release program and parole, the differences between the two are sufficiently substantial to warrant the conclusion that his participation in the work release program is not independently protected by the Due Process Clause. Specifically, as plaintiff himself acknowledges, at the time that his work release privileges were revoked, he was on “5” and “2” status, meaning that he was required to spend two nights a week sleeping at the institution. Thus, although the plaintiff “did enjoy some conditional liberty while participating in the work release program, he had not been released from institutional life altogether.” Whitehorn, 758 F.2d at 1421; see Edwards, 908 F.2d at 302. The significance of this indicia of incarceration is explained in a recent decision of the Tenth Circuit Court of Appeals: [T]he dispositive characteristic that marks the point at which the Due Process Clause itself implies a liberty interest ... is the fact of release from incarceration. The liberty associated with a life outside the walls of a penal facility dwarfs that available to an inmate.... It is the ability to reside in a home of one’s own, without bars or fences or bonds, beyond the immediate authority of guards or wardens. The passage outside the walls of a prison does not simply alter the degree of confinement; rather, it works a fundamental change in the kind of confinement, a transformation that signals the existence of an inherent liberty interest and necessitates the full panoply of procedural protections outlined in Morrissey. Harper v. Young, 64 F.3d 563, 566 (10th Cir.1995) (emphasis in original), petition for cert. filed, No. 95-1598 (U.S. Apr. 4, 1996). Thus, courts have denied due process protection in circumstances where the restrictions imposed upon the prisoner were fairly analogous to those in the present case. See Whitehorn, 758 F.2d at 1421 (prisoner’s removal from work release program did not trigger a liberty interest under the Due Process Clause of its own force); Brennan v. Cunningham, 813 F.2d 1, 5-6 (1st Cir.1987) (finding no inherent liberty interest in continued placement in work release program at an institutional halfway" }, { "docid": "22673308", "title": "", "text": "restraints on his freedom, we think his argument seeks to draw from the Due Process Clause more than it can provide. We have repeatedly said both that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests. As to the first point, we have recognized that broad discretionary authority is necessary because the administration of a prison is “at best an extraordinarily difficult undertaking,” Wolff v. McDonnell, supra, at 566, and have concluded that “to hold . . . that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Meachum v. Fano, supra, at 225. As to the second point, our decisions have consistently refused to recognize more than the most basic liberty interests in prisoners. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948). Thus, there is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979), and “the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,” Wolff v. McDonnell, supra, at 557, despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra, at 225, the transfer of a prisoner from one institution to another was found unprotected by “the Due Process Clause in and of itself,” even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a “grievous loss.” Moody v. Daggett, 429 U. S. 78, 88, n. 9 (1976). As we have held previously, these decisions require that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is" }, { "docid": "22673359", "title": "", "text": "whether the State uses a particular form of words in its laws or regulations, or indeed whether it has adopted written rules at all. Hence, as we noted in Wolff, the State is not required to allow prisoners good-time credits. But if it establishes such a system, it may not arbitrarily deprive a prisoner of these credits on the ground that the prisoner has engaged in serious misbehavior, unless its procedures for so doing are constitutionally adequate. Wolff, supra, at 556-557. Similarly, an offender has a liberty interest in parole release or probation “derived solely from the existence of a system that permits criminal offenders to serve their sentences on probation or parole.” Greenholtz, 442 U. S., at 24-25 (MARSHALL, J., dissenting in part); see id., at 30-31. Due process must be satisfied when a prisoner is singled out and denied parole. See also Connecticut Board of Pardons v. Dumschat, 452 U. S., at 471, and n. 5 (Stevens, J., dissenting) (when 75% of all life inmates receive commutation of life sentence, each life inmate has a liberty interest in commutation). See Brief for Respondent 32-34 (briefly setting forth history of penitentiaries; initially solitary confinement was the norm, but gradually authorities realized the advantages of the congregated system). The Commonwealth’s own prison regulations make clear how substantial the disparity is. Title 37 Pa. Code § 95.107(a)(2) (1978) provides: “The inmates therein shall have all the rights and privileges accorded to the general population except for freedom to move about the institution, freedom to engage in programs with the general population, the use of civilian clothing, the use of items specifically found by the Program Review Committee to be a security hazard . . . .” See Wolff, supra, at 571-572, n. 19 (due process applies to transfer to solitary confinement for major misconduct because it “represents a major change in the conditions of confinement”); cf. Montanye v. Haymes, 427 U. S., at 242 (question is whether the conditions or degree of confinement to which the prisoner is subjected is “within the sentence imposed upon him”). The Court of Appeals recognized" }, { "docid": "22327708", "title": "", "text": "for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established in and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in rela tion to the ordinary incidents of prison life.” Id., at 483-484 (citations and footnote omitted). After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves “in relation to the ordinary incidents of prison life.” Id., at 484. Applying this refined inquiry, Sandin found no liberty interest protecting against a 30-day assignment to segregated confinement because it did not “present a dramatic departure from the basic conditions of [the inmate’s] sentence.” Id., at 485. We noted, for example, that inmates in the general population experienced “significant amounts of ‘lockdown time’ ” and that the degree of confinement in disciplinary segregation was not excessive. Id., at 486. We did not find, moreover, the short duration of segregation to work a major disruption in the inmate’s environment. Ibid. The Sandin standard requires us to determine if assignment to OSP “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id., at 484. In Sandin’s wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. Compare, e.g., Beverati v. Smith, 120 F. 3d 500, 504 (CA4 1997), and Keenan v." }, { "docid": "22673336", "title": "", "text": "movement; and the possibility and variety of educational and vocational opportunities available to him.” Brief for Petitioners 11-12. According to petitioners, operational decisions such as these do not raise any constitutional question because prison officials need wide latitude to operate their institutions in a safe and efficient manner. The Court properly rejects the contention that the Due Process Clause is simply inapplicable to transfers of inmates into administrative segregation. It holds that respondent’s transfer from the general population into administrative confinement was a deprivation of liberty that must be accompanied by due process of law. The majority’s reasoning in support of this conclusion suffers, however, from a fundamental flaw. In its view, a “liberty interest” exists only because Pennsylvania’s written prison regulations display a magical combination of “substantive predicates” and “explicitly mandatory language.” Ante, at 472. This analysis attaches no significance either to the character of the conditions of confinement or to actual administrative practices in the institution. Moreover, the Court seems to assume that after his conviction a prisoner has, in essence, no liberty save that created, in writing, by the State which imprisons him. Under this view a prisoner crosses into limbo when he enters into penal confinement. He might have some minimal freedoms if the State chooses to bestow them; but such freedom as he has today may be taken away tomorrow. This approach, although consistent with some of the Court’s recent cases, is dramatically different from the anal ysis in Wolff v. McDonnell, 418 U. S. 539 (1974). In Wolff the Court squarely held that every prisoner retains a significant residuum of constitutionally protected liberty following his incarceration. Though the prisoner’s “rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. . . . [Prisoners] may not be deprived of life, liberty, or property without due process of law.” Id., at 555-556. The source of the liberty recognized in Wolff is not state" }, { "docid": "23279746", "title": "", "text": "those prevailing in the prison where he was previously confined, defendants err in claiming these decisions control the questions presented to us in this case. Meachum and Montanye hold only that some discretionary decisions of prison officials, such as the decision to transfer a prisoner to another institution, do not result in such a substantial invasion of a prisoner’s liberty interest as to trigger the need for due process protections., The Supreme Court explicitly stated that the transfer decisions did not result in confinement in maximum security segregation. Meachum v. Fano, supra, 427 U.S. at 219, 96 S.Ct. 2532; Montanye v. Haymes, id. 427 U.S. 236, 96 S.Ct. 2543. Contrary to defendants’ contention, these opinions do not hold that a prisoner may be confined in maximum security segregation “for whatever reason or for no reason at all”, regardless of the extent of the deprivation caused by such segregation. [Imposition of “solitary” confinement] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct. Here . . . there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction. Wolff v. McDonnell, supra, 418 U.S. at 571-72, n. 19, 94 S.Ct. at 2982. Moreover, Meachum and Montanye hold that if the state itself imposes limits on its discretion by conditioning decisions such as prison transfers on a specific standard being met, the state creates a liberty interest which is protected by due process. This is true whether the limits which the state imposes on itself stem from statute, rule, or regulation. Meachum v. Fano, supra, 427 U.S. at 226, 96 S.Ct. 2532. Here, defendants have limited the discretion of the classification committees by statewide regulations which define the circumstances under which an inmate may be confined in maximum security for adminis trative reasons. In its most recent version, Chapter 4, Article 6 of the rules and regulations of the Director of Corrections provides: § 3330. General Policy, (a) Inmates must be segregated from" }, { "docid": "7399035", "title": "", "text": "Id. 418 U.S. at 557, 94 S.Ct. at 2975. Gomes was vacated for reconsideration in light of Wolff, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, and after remand we proceeded to reconsider “What procedures are required?”, after noting that Wolff reaffirmed “that prisoners suffering the prospect of serious deprivations are entitled to some process”. 510 F.2d 537, 539 (1974). The question thus becomes one of whether the detriment worked by an intrastate transfer from a medium-security institution to a maximum-security prison is serious enough to trigger the applica tion of due process protections. Defendants correctly point out that Gomes may be distinguished from the instant case to the extent that our resolution of the interstate transfer question relied upon the assumption that interstate transfers will often be conducted between institutions which are separated by a significant distance. We noted in Gomes that the distance factor alone may make communication and visitation more difficult, and it is true that here the geographical issue is an irrelevant one. Moreover, there has been no suggestion that the plaintiffs are subject to the administrative segregation to which interstate transferees were routinely subjected upon arrival at the receiving institutions. In other ways, however, the disadvantages attendant upon these transfers are both more serious and more certain than those flowing from interstate transfers. While Gomes recognized that transferees were subjected to temporary administrative segregation at the receiving prisons, it was not assumed that thereafter their conditions of confinement would be more adverse than they had been before transfer. Defendants have stipulated, however, that Walpole and Bridgewater have stricter security and fewer rehabilitative programs than Norfolk, and that furloughs are more difficult to obtain at Walpole. The district court’s findings of fact included the following: “I find that the conditions of confinement at MCI, Walpole and MCI, Bridgewater, are substantially more adverse than they are at MCI, Norfolk. I further take judicial notice that these institutions have been deliberately differentiated to provide graduated conditions of confinement within the Department of Correction.” 387 F.Supp. at 667. See also Daigle v. Hall, 387 F.Supp. 652, 659 (D.Mass.1975)." }, { "docid": "7399043", "title": "", "text": "of the alleged offense with reasonable accuracy”. Not only is it difficult to discern how a notice lacking this element could adequately inform an inmate of the charges against him and enable him to prepare an adequate defense, Wolff, 418 U.S. at 564, 94 S.Ct. 2963, but this information would not in any case go beyond that which we have held must be provided in summary form after presentation at the hearing. Since we can see no significant institutional interest which would be served by withholding at the time of notice information which must ultimately be revealed, we agree with the district court as to the required form of notice. Affirmed. . The regulation is based on the theory that to grant a hearing might create difficulties of either double jeopardy or denial of the privilege against self-incrimination. We do not share the view that prosecution may not constitutionally be based on conduct which is also the subject of disciplinary proceedings. See, e. g., Palmigiano v. Baxter, 510 F.2d 534 (1st Cir. 1974). Nor do we feel that this concern on the part of the Commonwealth, if well-founded, could immunize what would otherwise be a due process violation. See Daigle v. Hall, 387 F.Supp. 652, 660-62 (D.Mass.1975); note 2 infra. . We attach no significance for present purposes to the fact that these proceedings were for “classification” rather than “discipline”. Defendants assert that “there are in the instant case as many administrative overtones as disciplinary ones”, but we have already indicated that in our view the motive of prison officials, as such, is not properly a part of the due process calculus. Gomes v. Travisono, 510 F.2d 537, 541 (1st Cir. 1974). Whether the transfer is thought of as punishment or as a way of preserving institutional order, the effects on the inmate are the same and the appropriateness of the action depends upon the accuracy of the official allegation of misconduct. . This action was originally commenced by seventeen inmates alleging that their reclassification into substantially more adverse conditions of confinement within Norfolk denied them due process. The six" }, { "docid": "23173721", "title": "", "text": "SEYMOUR, Circuit Judge. This is a consolidated civil rights action brought by inmates of the Colorado State Penitentiary under 42 U.S.C. § 1983. Plaintiffs sought to require defendant prison officials to afford due process before adversely affecting the prisoners’ conditions of confinement. Defendants appeal from the district court’s order requiring them to comply with the hearing procedures set forth in their Manual and Policy on Classification (Manual). Defendants argue that the order requiring compliance is invalid because the named plaintiffs had already received the relief they requested, rendering their claims moot. Plaintiffs contest the claim of mootness on the ground their suit is a class action encompassing the rights of all inmates at the penitentiary, despite the lack of a formal order certifying the class under Fed.R.Civ.P. 23(c)(1) prior to the entry of summary judgment. Both parties appeal the award of attorneys fees to plaintiffs. We affirm in part and reverse in part. In September 1974, a fire at the Colorado State Penitentiary destroyed the gymnasium and damaged cells in the prison’s maximum security section. As a result of this and other incidents, a number of inmates were transferred to cell blocks with less favorable conditions of confinement. While most inmates were thereafter returned to their previous cell block, some two hundred prisoners, including many of the named plaintiffs in this case, remained in the less desirable cellhouse. These actions were consolidated in November 1974. At that time, the Supreme Court decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), favored plaintiffs’ position that they were entitled to Fourteenth Amendment due process before their conditions of confinement could be substantially altered. A footnote in Wolff suggested that because solitary confinement constitutes a major adverse change in an inmate’s condition of confinement, “there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction.” Id. at 571-72 n. 19, 94 S.Ct. at 2982 n. 19. Plaintiffs relied on Wolff to contend that regressive classification was similarly subject to due process standards. This was the state of" }, { "docid": "22687431", "title": "", "text": "of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948); see also Pell v. Procunier, 417 U. S. 817, 822 (1974); Wolff v. McDonnell, 418 U. S. 539, 555 (1974). The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in Pell v. Procunier, supra, at 822: “[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.” Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution. Equally as obvious, the inmate’s “status as a prisoner” and the operational realities of a prison dictate restrictions on the associational rights among inmates. Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators. We noted in Procunier v. Martinez, 416 U. S. 396, 405 (1974): “[CJourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.” (Footnote omitted.) See also Cruz v. Beto, 405 U. S. 319, 321 (1972). It is in this context that the claims of the Union must be examined. B State correctional officials uniformly testified" }, { "docid": "22809977", "title": "", "text": "“Although the complaint put at issue the procedures employed with respect to the deprivation of good time, under the Nebraska system, the same procedures are employed where disciplinary confinement is imposed. The deprivation of good-time and ‘solitary’ confinement are reserved for instances where serious misbehavior has occurred. This appears a realistic approach, for it would be difficult for the purposes of procedural due process to distinguish between the procedures that are required where good time is forfeited and those that must be extended when solitary confinement is at issue. The latter represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct. Here, as in the case of good-time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction. We do not suggest, however, that the procedures required by today’s decision for the deprivation of good-time would also be required for the imposition of lesser penalties such as the loss of privileges.” This footnote is particularly significant in the instant case for under the new Parchman regulations, prisoners can lose their statutory good-time credits and be subjected to solitary confinement for all misconduct violations. See, infra n. 14 (p. 1315) where the potential disciplinary action is set out in full. Therefore, we easily conclude that in the instant case since the disciplinary sanction always potentially involves some degree of loss of good-time and/or solitary confinement, the minimum procedural requisites discussed in Wolff are required. The issues thus become (1) whether the district court’s order here incorporated all of the procedural requisites mandated in Wolff as attendant to disciplinary proceedings involving loss of good time and solitary confinement and (2) whether the procedures actually included in the district court’s order were constitutionally required. The district court required the appropriate twenty-four hours written notice of charges and permitted the accused inmate to respond to the charges, but did not allow cross-examination — all compatible with Wolff. The district court did not, however, demand" }, { "docid": "13199804", "title": "", "text": "within the prison system that it would be unlivable and would not be able to function as a prison. If you just across the board said because there is no liberty interest in being in SHU or special housing unit, punitive segregation, we are going to put you in punitive segregation because we think that you assaulted this inmate. It is a way to make sure that innocent people are not going, spending significant time in punitive segregation ____ You can’t run a prison like that. It would be impossible from an inmate’s point of view to not have these kind of Tier 3[III] hearings. (Tr. at 17-18) In fact, in response to the argument of some district courts that it was unworkable to identify the creation of a liberty interest on actual punishment because States could not determine in advance of sentence the procedural requirements necessary in a particular ease, the Second Circuit in Scott “assume[d] that states will take the precaution of providing the required level of due process to every inmate who realistically faces a punishment that is atypical under Sandin, a precaution that would render the actual punishment rule perfectly workable.” Scott, 138 F.3d at 478. The Supreme Court in Wolff had no difficulty in recognizing the significant hardships of isolation. See Wolff, 418 U.S. at 571, n. 19, 94 S.Ct. 2963 (Solitary confinement “represents a major change in the conditions of confinement.”). The dissent in Hewitt, written by Justice Stevens, the advocate of the grievous loss approach of Goldberg, also concluded that the conditions of solitary confinement, similar to the conditions now in New York, were a “drastic” and “severe” impairment of the inmate’s life in prison and triggered the protection of the due process clause of the Constitution. Hewitt, 459 U.S. at 487-88, 103 S.Ct. 864. The Sandin majority, however, did not perceive the conditions of segregation in Hawaii for thirty days to impose an atypical or significant hardship. See Sandin, 515 U.S. at 494, 115 S.Ct. 2293 (Breyer, J., dissenting) (“The punishment [SHU] worked a ... major change in Conner’s conditions____Conner, for 30" }, { "docid": "22673360", "title": "", "text": "has a liberty interest in commutation). See Brief for Respondent 32-34 (briefly setting forth history of penitentiaries; initially solitary confinement was the norm, but gradually authorities realized the advantages of the congregated system). The Commonwealth’s own prison regulations make clear how substantial the disparity is. Title 37 Pa. Code § 95.107(a)(2) (1978) provides: “The inmates therein shall have all the rights and privileges accorded to the general population except for freedom to move about the institution, freedom to engage in programs with the general population, the use of civilian clothing, the use of items specifically found by the Program Review Committee to be a security hazard . . . .” See Wolff, supra, at 571-572, n. 19 (due process applies to transfer to solitary confinement for major misconduct because it “represents a major change in the conditions of confinement”); cf. Montanye v. Haymes, 427 U. S., at 242 (question is whether the conditions or degree of confinement to which the prisoner is subjected is “within the sentence imposed upon him”). The Court of Appeals recognized that, in the emergency conditions on December 3, 1978, prison officials were justified in placing respondent in administrative segregation without a hearing. Respondent does not contend otherwise. The Due Process Clause allows prison officials flexibility to cope with emergencies. But petitioners acknowledge that the disturbance was “quelled” the same day, Brief for Petitioners 3, and that, within a day or two after the December 3,1978, prison riot, conditions had returned completely to normal. See App. 55a-56a, 68a. At that point the emergency rationale for administrative segregation without a hearing had expired. The Due Process Clause then required a prompt proceeding to determine whether continued administrative segregation was justified. Cf. Hughes v. Rowe, 449 U. S. 5, 11 (1980) (“Segregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions”). Yet Helms was not accorded any procedural safeguards whatsoever until five days after the riot — another violation of his due process rights. Indeed, petitioners do not contend that a face-to-face presentation" }, { "docid": "19651954", "title": "", "text": "v. Alvey, 67 Haw. 49, 55, 678 P. 2d 5, 9 (1984). Admittedly, prisoners do not shed all constitutional rights at the prison gate, Wolff, 418 U. S., at 555, but “ ‘[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ ” Jones, 433 U. S., at 125, quoting Price v. Johnston, 334 U. S. 266, 285 (1948). Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law. This case, though concededly punitive, does not present a dramatic departure from the basic conditions of Conner’s indeterminate sentence. Although Conner points to dicta in cases implying that solitary confinement automatically triggers due process protection, Wolff, supra, at 571, n. 19; Baxter v. Palmigiano, 425 U. S. 308, 323 (1976) (assuming with out deciding that freedom from punitive segregation for “ ‘serious misconduct’ ” implicates a liberty interest, holding only that the prisoner has no right to counsel) (citation omitted), this Court has not had the opportunity to address in an argued case the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests. We hold that Conner’s discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest. The record shows that, at the time of Conner’s punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody. We note also that the State expunged Conner’s disciplinary record with respect to the “high misconduct” charge nine months after Conner served time in segregation. Thus, Conner’s confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction. Indeed, the conditions at Halawa involve significant amounts of “lockdown time” even for inmates in the general population. Based on a comparison between inmates inside and outside disciplinary segregation, the State’s actions in placing him there for 30 days did not work a major disruption in his environment. Nor" }, { "docid": "23555284", "title": "", "text": "or her acts were unlawful. See Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989) (citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Consequently, to ascertain what was clearly established when the Adjustment Committee disciplined Jermosen, we must consider what the state of the law was at that time. In 1974, the Supreme Court held in Wolff that before an inmate could be placed in solitary confinement or deprived of good time, due process required that the inmate be afforded, inter alia, a “ ‘written statement by the factfinders as to the evidence relied on and reasons’ for the disciplinary action.” Wolff, 418 U.S. at 564, 94 S.Ct. at 2978-79 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)). The Court specifically noted, however, that if the prison administration intended to impose lesser penalties than solitary confinement or loss of good time, it might not be necessary to afford the inmate the procedural protections that it specified in Wolff. See 418 U.S. at 560-63, 94 S.Ct. at 2976-78. Accordingly, lower courts and prison administrators were left with the task of determining in what circumstances the procedural protections enunciated in Wolff were required. Four years after Wolff was decided, this Court grappled with the question of “where keeplock falls on the spectrum be tween loss of privileges at one extreme and forfeiture of good time or placement in solitary confinement at the other.” McKinnon v. Patterson, 568 F.2d 930, 936 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). We emphasized that the duration for which keeplock could be imposed was a factor to be considered in determining whether a prison Adjustment Committee was required to afford an inmate the procedural protections required in Wolff. However, we declined to state whether Wolff would apply in circumstances in which the maximum possible sanction was less than fourteen days. While we concluded that extended keeplock “is not significantly different from the other forms of punishment which we have held to constitute substantial deprivations,” we found" }, { "docid": "174961", "title": "", "text": "sentence), placement in administrative segregation for more than two and a half years is not atypical. But the proper analysis should focus not on whether the prison was authorized to place Jones in administrative segregation for any particular length of time, but rather on determining the point at which the prison had to comply with the procedural safeguards provided by the Due Process Clause in order to keep him there. Unlike the majority, I believe that Sandin’s case-by-case approach mandates that we address the realities of the particular inmate’s deprivation, rather than engage in a broad-brush analysis. See Scott v. Albury, 138 F.3d 474, 479 (2d Cir.1998) (noting that Sandin requires courts to focus on the actual length of time an inmate was kept in solitary confinement, not how long he could have been kept there). II. Process Provided Jones argues that he was entitled to the due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The principles set forth in Wolff, however, only apply when the inmate is being subjected to disciplinary action, as opposed to segregation for administrative reasons. See 418 U.S. at 560, 94 S.Ct. 2963. Although under active criminal investigation during his administrative segregation, Jones was not charged with any prison rule violation until January 11, 1996, when the Board determined that he should continue in administrative segregation for murdering a prison guard. It is only after that point in time that the procedural protections provided in Wolff were triggered. Because Jones has not challenged his continued confinement in administrative segregation since the Board’s decision, there is no need to determine whether Jones’s continued confinement meets with the due process protections afforded by Wolff In contrast, the Court in Hewitt set forth the protections that the Due Process Clause affords inmates who are placed in solitary confinement for administrative reasons. The Court held that in order to transfer an inmate from an already restricted environment (general prison conditions) to a more confining condition (solitary confinement) out of fear that the inmate poses a threat to prison" }, { "docid": "6948577", "title": "", "text": "OPINION ON REHEARING HUFSTEDLER, Circuit Judge: We granted rehearing to assess the impact of Wolff v. McDonnell (1974) 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 upon our prior opinion stating the constitutional protections due inmates of San Quentin prison in the context of prison disciplinary proceedings (497 F.2d 809). We modify our opinion in respect of loss of privileges, confrontation and cross-examination of witnesses, and the right to counsel or a counsel-substitute in disciplinary proceedings (other than those involving infractions also punishable by state authorities as crimes) to conform it to the views expressed in Wolff. We reaffirm our prior opinion in all other respects because the remaining portions are in harmony with Wolff, or are related to issues untouched by Wolff. We are mindful of the Court’s encouragement of the continued development of prison disciplinary procedures and of experiments within the disciplinary context directed toward rehabilitative goals. We are particularly aware of the Court’s admonition that the minimum constitutional protections mandated by Wolff are not “graven in stone” (418 U.S. at 572, 94 S.Ct. at 2982) and that the underlying constitutional concepts will be subject to reevaluation as changes in prison discipline evolve. I. “Privileges” Our prior opinion extended the due process protections therein described “[e]ven [to] a temporary suspension of ‘privileges,’ by restricting the prisoner’s activities to a greater extent than the general- prison population . . . .” (497 F.2d at 815.) Because the Court in Wolff suggested that the due process procedures it commanded might not be required in proceedings involving “lesser penalties such as the loss of privileges” (418 U.S. at 571, 94 S.Ct. at 2982, n. 19) we reconsider the point. Any deprivation of the small store of “privileges” accorded a confined or relatively confined group causes a far greater sense of loss than a similar deprivation in a free setting, as anyone can attest who has been a student in a strict boarding school, a sailor aboard ship, a combat soldier, or a prisoner in time of war or peace. Within prison walls, the denomination “privileges” can encompass a host of" } ]

[ { "docid": "11922562", "title": "", "text": "upon failure of El Paso to seek review in the manner and within the time prescribed by statute the “acceptance” became final and precluded any further action by the Commission on the issue raised by the protest. These arguments are clearly without merit. Section 4(e) of the Act, supra, empowers the Commission to suspend the operation of new schedules and “to enter upon a hearing concerning [their] lawfulness” either upon its own initiative or the complaint of a “gas distributing company” such as El Paso. Where, as here, an interested party lodges a protest against the proposed increase of contractually established rates, a hearing is required. See Mississippi River Fuel Corp. v. Federal Power Commission, 202 F.2d 899 (3rd Cir. 1953); Willmut Gas & Oil Company v. Federal Power Commission, 294 F.2d 245, 248, 249 (D.C.Cir. 1961), cert. den. 368 U.S. 975, 82 S.Ct. 477, 7 L.Ed.2d 437. The Commission is without authority to summarily reject the protest and accept the new schedules for filing. Ibid. Since the Act prohibits a unilateral increase of contract rates, United Gas Pipe Line Co. v. Mobile Gas Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956), it was incumbent upon the Commission to conduct a hearing and determine whether the proposed increases were contractually supported. The suspension orders here in question are procedural and interlocutory and contain no provision which may be construed as either a resolution of the issue raised by the protest or an acceptance of the schedules for filing. They acknowledged that the schedules had been “tendered for filing,” suspended the operation of the schedules for the statutory period, and directed a hearing as to the lawfulness of the proposed increases. The orders were not final and reviewable. Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 383-385, 58 S.Ct. 963, 966, 967, 82 L.Ed. 1408 (1938); City of Corinth v. Federal Power Commission, 268 F.2d 10 (5th Cir. 1959), cert. den. 361 U.S. 900, 80 S.Ct. 209, 4 L.Ed.2d 156; Texas Gas Corporation v. Federal Power Commission, 250 F.2d 27 (D.C.Cir. 1957); Humble Oil & Refining" } ]

[ { "docid": "10916786", "title": "", "text": "by the FPC as evidenced by its rulings and orders in this record has not been considered in reference to the doctrine of confiscation which provides the constitutional base for court review of proceedings of this nature. The specifics of rate-making include the resolution of disputed facts and a consideration of the constitutional problems attendant to the fixing of just and reasonable rates. The issue is the method of setting rates for the gas producers, and although the Supreme Court has indicated that some substantial departures from traditional methods are permitted, the complete conversion to rulemaking under the orders here concerned does not ap pear warranted under existing decisions. I am not prepared to anticipate a further departure in view of the constitutional limitations. Some further examination of the decisions appears to be necessary before considering some practical problems of the record, the required review by the courts, and some specific matters relative to the method here sought to be used by the FPC. In F. P. C. v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037, the Court considered the ratemaking function of the FPC under section 5 of the Natural Gas Act. The Commission then was proceeding under the typical return on “investment” ratemaking doctrines. However, the Court described at some length the function of the courts and the nature of judicial review under the Natural Gas Act, and stated: “Once a fair hearing has been given, proper findings made and other statutory requirements satisfied, the courts cannot intervene in the absence of a clear showing that the limits of due process have been overstepped.” It is this determination by the courts that is frustrated by the procedure here adopted by the FPC. The Supreme Court, prior to F. P. C. v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037, had decided Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (see also 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129). One of the principal issues there raised and considered by the Court" }, { "docid": "13340559", "title": "", "text": "date, violates Sections 4(d) and 4(e) of the Act, 15 U.S.C. §§ 717c(d) and 717c(e) which provide in pertinent part: Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. ****** Whenever any such new schedule is filed the Commission shall have authority, ... to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, . . . may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect. ... In Order No. 455-A the Commission commented on its provision for advance approval of contract rate escalations. We have also been asked to clarify whether or not contract escalations approved by the Commission in a Section 2.75 proceeding would be self-operative or whether such would necessarily be subject to rate change filings under Section 4(e) of the Natural Gas Act. We believe that this inquiry is answered by Episcopal Theological Seminary of the Southwest v. F. P. C. [106 U.S.App.D.C. 37], 269 F.2d 228 (CADC), cert. denied sub nom., Pan American Petroleum Corp. v. F. P. C., 361 U.S. 895 [80 S.Ct. 197, 4 L.Ed.2d 151] (1959), wherein it was held that no rate change could become effective without a 4(e) filing. This is not to say, however, that the Commission recedes from the basic position expressed in Order No. 455 that it intends to grant sanctity of contract to the full extent that the Commission can, absent amendment of the Natural Gas Act by Congress. It is our intention to consider applications under Section 2.75 and make a one time determination of the public convenience and necessity aspects of the certificate application and the justness and reasonableness of the rates therein proposed, both as to initial" }, { "docid": "10916787", "title": "", "text": "575, 62 S.Ct. 736, 86 L.Ed. 1037, the Court considered the ratemaking function of the FPC under section 5 of the Natural Gas Act. The Commission then was proceeding under the typical return on “investment” ratemaking doctrines. However, the Court described at some length the function of the courts and the nature of judicial review under the Natural Gas Act, and stated: “Once a fair hearing has been given, proper findings made and other statutory requirements satisfied, the courts cannot intervene in the absence of a clear showing that the limits of due process have been overstepped.” It is this determination by the courts that is frustrated by the procedure here adopted by the FPC. The Supreme Court, prior to F. P. C. v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037, had decided Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (see also 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129). One of the principal issues there raised and considered by the Court was the nature of the hearing required to be held under the Packers and Stockyards Act [7 U.S.C. §§ 181-229], The Court there held it was quasi-judicial and that a “full hearing” was required and said: “Nothing can be treated as evidence which is not introduced as such. Facts and circumstances must not be considered which should not legally influence the conclusion. Findings based on the evidence must embrace the basic facts which are needed to sustain the order.” This is a clear and direct reference to the procedure and to nothing else. There have been several decisions by the United States Courts of Appeals which directly concerned summary proceedings under the Natural Gas Act. Some of these are based on the Act and some on due process. One of the earlier of these cases is Mississippi River Fuel Corp. v. F. P. C., 202 F.2d 899 (3d Cir.), where the court did not permit a summary refusal by the FPC to receive a rate schedule tendered under section 4. Later in Shell Oil Co." }, { "docid": "13541888", "title": "", "text": "gas industry and the consuming public filed initial and/or reply comments of the various staff rate recommendations, the intrastate market and natural gas rate regulation in general, and additionally filed comments, answers and replies to the submittals of each other. Br. p. 11. Opinion No. 770 was issued July 27, 1976, followed November 5, 1976, after rehearing and oral arguments, by Opinion No. 7.70-A. Apart from dispute as to their justness and reasonableness the rates are challenged as procedurally invalid because determined without the kind of full dress hearing said to have been required by the Administrative Procedure Act (APA), the Natural Gas Act and due process of law. As to the APA, first considered, the answer turns on whether the hearing required by Sections 556 and 557 or the procedures of Section 553 or an admixture of those provisions, applied. In Mobil Oil Corp. v. F.P.C., 157 U.S.App.D.C. 235, 249, 483 F.2d 1235, 1249 (1973), our court said that when Sections 556 and 557 of the APA govern, “parties have the right to submit evidence and engage in some form of cross-examination”, but that when Section 553 governs, a method of proceeding somewhat more informal than was utilized in this case is generally permitted. The court noted, however, that Sections 556 and 557 govern only “when rules are required by statute to be made on the record after opportunity for an agency hearing.” The Natural Gas Act contains no express mandate of that character. Nevertheless, this does not solve the problem whether the procedures of Section 553 have been complied with, or whether the Natural Gas Act, notwithstanding it contains no reference to an “on the record” hearing, requires more formal procedures in establishing rates by rulemaking than were accorded the parties in the present proceedings. This depends upon the meaning of Section 553 of the APA and the “full hearing” specified in section 4(e) of the Natural Gas Act, considered with the substantial evidence provision of Section 19(b) of that Act. In arriving at our conclusion, we consider now United States v. Allegheny-Ludlum Steel Corp., supra, which arose" }, { "docid": "17535326", "title": "", "text": "the grant. Section 7(c) requires that a hearing be held. Whether, and to what extent, the initial contracts were genuine, and whether, and to what extent, the “new” contracts were merely a continuation or something substantially different, involved at least questions of judgment which could not be foreclosed peremptorily by slamming the door shut before it was scarcely opened. Northeastern Gas Transmission Co. v. F. P. C., 3 Cir., 1952, 195 F.2d 872, certiorari denied Algonquin Gas Transmission v. Northeastern Gas Transmission Co., 344 U.S. 818, 73 S.Ct. 13, 97 L.Ed. 637; Mississippi River Fuel Corp. v. F. P. C., 3 Cir., 1953, 202 F.2d 899; Cities Service Gas Co. v. F. P. C., 10 Cir., 1958, 255 F.2d 860. The Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011, applicable to the Federal Power Commission, State Corporation Commission of Kansas v. F. P. C., 8 Cir., 1953, 206 F.2d 690, likewise assures a hearing. Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; Riss & Co. v. United States, D.C.W.D.Mo., 1950, 96 F.Supp. 452, reversed, 1951, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345. The peremptory nature of the Commission proceedings which we approve is dramatically demonstrated by the Court’s reference to the producer’s contentions under § 7(b). To the argument of the producer that “it engages in no service and renders no service, that it does not propose to abandon any facilities, that it has no facilities subject to the Commission’s jurisdiction and hence it is not subject to Section 7(b) of the Act -» * * n the Court holds “our decision in Continental Oil Company v. Federal Power Commission, 5 Cir., 266 F.2d 208, is controlling on this issue.” Accepting, for the moment, the correctness of our decision in Continental Oil Company, that decision deals at length with minute facts concerning a specific well which was the subject of an extensive hearing. In this proceeding, without hearing without evidence, without knowing whether, in the sense of Continental Oil Company, there is any “facility” by which the service is performed, this Court" }, { "docid": "3731276", "title": "", "text": "conclusive”). For this analysis, we may treat this statute and the judicial review provision of the Federal Power Act, 16 U.S.C. § 8251(b) (1976) as one. The language of the two provisions is identical, and it has been held that Supreme Court rulings on the Natural Gas Act are applicable to Federal Power Act cases. Municipal Light Boards of Reading & Wakefield, Mass. v. FPC, 146 U.S.App.D.C. 294, 299-300, 450 F.2d 1341, 1346-47 (1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972). . See, e. g., United Gas Pipe Line Co. v. FPC, 86 U.S.App.D.C. 314, 181 F.2d 796, cert. denied, 340 U.S. 827, 71 S.Ct. 63, 95 L.Ed. 607 (1950). . The obvious example of this is the areawide ratemaking program first upheld in the Permian Basin Area Rate Cases, supra. See also FPC v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964). . E. g., American Public Gas Ass’n v. FPC, 178 U.S.App.D.C. 217, 220-221, 546 F.2d 983, 986-87 (1976) (“the Court should inquire into the factual predicate for the rule”); City of Chicago v. FPC, 147 U.S.App.D.C. 312, 321-322, 324, 458 F.2d 731, 740-41, 743 (1971) (“some inquiry into the factual predicate for rules promulgated by the Commission is required when review of those rules is sought here”). . This requirement carries no implications for procedures to be followed by the Commission in compiling the record. As the Ninth Circuit observed in Union Oil Co. of California v. FPC, 542 F.2d 1036, 1041 (9th Cir. 1976), concerning a proposed FPC rule on data reported to the agency: In this case, we look to the record to see whether it contains substantial evidence which supports [the Commission’s] conclusion . . . . While a detailed explanation might be sufficient . . . , there must, at least in the face of objection, be evidence that the data are reasonably available to the producers. This does not mean that the Commission must have conducted an adjudicative hearing, or, for that matter, any oral hearing. It only means that before the Commission" }, { "docid": "5268849", "title": "", "text": "begun, Willmut petitioned the Commission to reject it. The Commission denied the petition. Willmut appealed and argued inter alia that the new filings would frustrate the pending investigation of prior rates and that the Commission could and should have rejected the tariff modifications. 294 F.2d at 246-49. The Court of Appeals for the District of Columbia Circuit rejected these contentions. It held that the Commission had authority notwithstanding subsequent rate revisions to continue its pending investigation “as to whether the rates previously filed were lawful for the period from the date of filing until they were superceded by a later filing, and to order a refund . . . .’’Id. at 249. The court also held that: “Section 4(d) of the [Natural Gas] Act does not give the Commission the discretion to reject schedules of increased rates tendered by a natural gas company .... The Commission’s power with respect to a filed increase is found in Section 4(e): to initiate a hearing as to the lawfulness of the changed rates, to suspend their effectiveness for a time, and to order refunded that portion of the increase which, after hearing, it determines to be unlawful. Thus the Act provides for investigation of changed rates which have been filed; but it does not contemplate that the Commission may refuse to file a tendered new schedule showing changes in rates, or that it may summarily reject or disallow the new schedule without a hearing.” 294 F.2d at 248-49. The court further held that Section 16 of the Gas Act (the counterpart of Section 4(i) of the Communications Act) did not authorize the FPC to circumvent the rate making scheme set forth in Sections 4(d) and 4(e) of that Act. Cf. United Gas Pipe Line v. Mobil Gas Service Corp., 350 U.S. 332, 343 (1956). Despite the square holding in Willmut —construing a statutory plan for company initiated rate changes similar to that under the Communications Act — that the FPC lacks the authority to “refuse to file a tendered new schedule showing changes in rates, or . summarily [to] reject or disallow the" }, { "docid": "10916780", "title": "", "text": "U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933); I. C. C. v. Louisville & Nashville R. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431 (1913) (dictum). In summary, we are of the opinion that the proposed rulemaking is in harmony with the comments of the Supreme Court contained in Permian Basin and in harmony also with the Natural Gas Act and the APA. The gas producers’ contrary argument is largely based on the FPC’s history of conducting adjudicatory hearings. Based on this history, the gas producers would seek to have the court impose a requirement that its hearings be conducted in this manner. We are convinced that such action would be unwarranted. The petition for review should be and the same is hereby denied. . E. g., Southern Louisiana Area Rate Proceeding, 40 RPC 530 (1968), aff’d, 428 F.2d 407 (5th Cir.), cert. denied sub nom. Municipal Distributors Group v. FPC, 400 U.S. 950, 91 S.Ct. 241, 27 L.Ed.2d 257 (1970); Hugoton-Anadarko Area Rate Proceeding, 44 FPC 761 (1970), affirmed, 466 F.2d 974 (9th Cir. 1972); Texas Gulf Coast Area Rate Proceeding, 45 FPC - (May 6, 1971), appeal pending, D.C.Cir., No. 71-1828; Other Southwest Area Rate Proceeding, 46 FPC - (October 29, 1971), appeal pending, 5th Cir., No. 72-1114. . Permian Basin Area Rate Cases, supra, at 816 n. 99, 88 S.Ct. at 1385. . Id. at 772 n. 37, 88 S.Ct. at 1362. . 34 Fed.Reg. 17341 (1969). . 44 FPC 1112 (1970). Although several parties challenged the Commission’s use of its rulemaking authority to establish rates, the Commission cited American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1969), and stated that no party demonstrated a need for a formal, evidentiary hearing. 44 RPC at 1119. No party appealed the Commission’s order. The Commission had further noted that our action here is not one based on a nugatory record. We fully considered the staff report, and accepted it as evidence. We received lengthy and well-considered comments from many parties, and" }, { "docid": "17535325", "title": "", "text": "requested for the “new” contract, the Commission can again look at it. Unless the proposed contract subjects the producer to substantial obligations permitting effective regulation for the future, the Commission may decline the Certificate. All it may not do is force a producer either to produce more gas, or sell more gas, or sell more gas for a longer time. If that is to occur after the expiration of the initial contract, it may be done only upon application of the parties pursuant to a new agreement. The Commission still has the last check since the condition for the grant of the new Certificate may be alteration in the terms of the agreement. VII. Finally, all of this has come about with no hearing, with no opportunity for hearing, and with an absolute refusal of the Commission even to receive the various applications for the purpose of a hearing. Section 7(e) prescribes a hearing to determine whether a Certificate should be issued and whether, and to what extent, special conditions ought to be imposed on the grant. Section 7(c) requires that a hearing be held. Whether, and to what extent, the initial contracts were genuine, and whether, and to what extent, the “new” contracts were merely a continuation or something substantially different, involved at least questions of judgment which could not be foreclosed peremptorily by slamming the door shut before it was scarcely opened. Northeastern Gas Transmission Co. v. F. P. C., 3 Cir., 1952, 195 F.2d 872, certiorari denied Algonquin Gas Transmission v. Northeastern Gas Transmission Co., 344 U.S. 818, 73 S.Ct. 13, 97 L.Ed. 637; Mississippi River Fuel Corp. v. F. P. C., 3 Cir., 1953, 202 F.2d 899; Cities Service Gas Co. v. F. P. C., 10 Cir., 1958, 255 F.2d 860. The Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011, applicable to the Federal Power Commission, State Corporation Commission of Kansas v. F. P. C., 8 Cir., 1953, 206 F.2d 690, likewise assures a hearing. Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; Riss & Co. v. United States, D.C.W.D.Mo.," }, { "docid": "2588759", "title": "", "text": "the control of the parties. We must conclude that the pressure clause did as a matter of contract law become operative to terminate the base contract by its own terms. The facts and the contract are before us as considered by the FPC. The Commission held no hearings. This is a matter of ordinary contract law, a Williston-Corbin problem, and, as we consider this petition, nothing more than that. The Natural Gas Act does not alter the ordinary contractual relationships. United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373; Phillips Petroleum Co. v. Federal Power Comm’n, 349 F.2d 535 (10th Cir.). See also the termination in Gulf Oil Corp. v. American Louisiana Pipe Line Co., 282 F.2d 401 (6th Cir.). We considered the measure to be applied to ordinary legal issues in Warren Petroleum Corp. v. Federal Power Comm’n, 282 F.2d 312 (10th Cir.), and there said: “At the outset, the Commission urges • that its interpretation of the ‘favored-nation’ clause as to the rate provision is a matter peculiarly within its competence, and that judicial review is limited to considering only whether the Commission’s determination is reasonable. Its brief states: ‘ * * * The Commission is far better equipped than reviewing courts to interpret and evaluate the natural gas purchase contracts which are not only essential to the business but which, in the case of independent producers, themselves usually constitute the rate schedules required to be filed with the Commission.’ This rule has no application in the instant case. It is quite apparent that the Commission’s refusal to accept the rate filing was based upon its construction of the contract provisions and the application of ordinary principles of contract law, and not upon its experiences in the administration of the Natural Gas Act. The identical question was recently answered contrary to the contention of the Commission in Texas Gas Transmission Corp. et al. v. Shell Oil Co., 363 U.S. 263, 268, 80 S.Ct. 1122, 1126, 4 L.Ed.2d 1208, where it was said: (Quotation omitted).” See also “ordinary rules" }, { "docid": "14643245", "title": "", "text": "in its Supplement No. 10 to FPC Gas Rate Schedule No. 7 dated September 18, 1961 it is asserted that the rate is less than the ceiling price in Northern Louisiana and less than the actual statutory “just and reasonable” price in the consolidated §§ 4(e) and 5 (a) proceedings entitled “In the Matter of Murphy Corporation, et al. Docket No. 9548.” Of course, if the rates are in fact just and reasonable, the public is not adversely affected. The Commission stated in its rehearing order that “it does not involve any determination as to the justness and reasonableness of Murphy’s rate. The basis for the refund requirement is a contractual one.” We think that a hearing is imperative for a proper determination of this case, and that to deny it is to deny petitioner procedural due process. The court said in Shell Oil Co. v. Federal Power Commission, 334 F.2d 1002, 1012 (3rd Cir. 1964): “The parties to a proceeding before an administrative agency such as the Commission are entitled to: first, due notice as to the nature and scope of the contemplated inquiry; second, an opportunity to be heard and present evidence; and third, a full hearing in conformity with the fundamental concepts of fairness. * * * A departure from these minimal requirements is a denial of procedural due process. * * * ” The Commission’s order is set aside and the case is remanded with directions that a plenary hearing be held as set out in this opinion. . The contract here involved was originally between Murphy Oil Corporation (formerly Murphy Corporation) and Mississipxu River Fuel Corporation, but was subsequently assigned by Mississippi River Fuel to its subsidiary, Mississippi River Transmission Corporation, both of which will be referred to herein as “Mississippi.” . “ARTICLE VIII. :¡: í¡; * “2. In addition to the price as set forth above, Buyer agrees to pay to Seller for each 1,000 cubic feet of gas sold and delivered hereunder, the sum of two and one-half cents (2%0) for delivering the gas from the well or wells from which it is" }, { "docid": "10916788", "title": "", "text": "was the nature of the hearing required to be held under the Packers and Stockyards Act [7 U.S.C. §§ 181-229], The Court there held it was quasi-judicial and that a “full hearing” was required and said: “Nothing can be treated as evidence which is not introduced as such. Facts and circumstances must not be considered which should not legally influence the conclusion. Findings based on the evidence must embrace the basic facts which are needed to sustain the order.” This is a clear and direct reference to the procedure and to nothing else. There have been several decisions by the United States Courts of Appeals which directly concerned summary proceedings under the Natural Gas Act. Some of these are based on the Act and some on due process. One of the earlier of these cases is Mississippi River Fuel Corp. v. F. P. C., 202 F.2d 899 (3d Cir.), where the court did not permit a summary refusal by the FPC to receive a rate schedule tendered under section 4. Later in Shell Oil Co. v. F. P. C., 334 F.2d 1002 (3d Cir.), the same court held that those objecting to filings under section 4 should have an opportunity to be heard and there be a “full hearing.” See also Hill v. F. P. C., 335 F.2d 355 (5th Cir.). In Murphy Oil Corp. v. F. P. C., 431 F.2d 805 (8th Cir.), the court considered FPC action on a rate application without a hearing. The Commission had sought to handle the issue under section j.6 of the Natural Gas Act, but the court held that a “hearing” was required, which was understood to mean a formal hearing. The court in American Louisiana Pipe Line Co. v. F. P. C., 120 U.S.App.D.C. 140, 344 F.2d 525, held an evidentiary record was required with a decision based upon the facts so developed and not upon the regulatory experience of the agency. F. P. C. v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037, must be regarded as a significant case as to the issues before" }, { "docid": "23011032", "title": "", "text": "for gas not yet taken usually are capitalized and included in the pipeline’s rate base. See, e. g., Transwestem Pipeline Co., 36 F. P. C. 176, 191-199; Transcontinental Gas Pipe Line Corp., F. P. C. Docket No. CP 65-181 (Phase II), Opinion No. 532, Nov. 6, 1967. See also FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1. At present, “budget” authority permits a pipeline to expend on gas-purchasing facilities the lesser of $5,000,000 or 1.5% of its existing plant investment, with the total cost of any single gas-purchase project not to exceed the lesser of $500,000 or 25% of the total budget amount. See 18 CFR § 157.7 (b). See id., § 157.9 et seq. Annual reports must be made to the Commission describing the prior year’s construction. Id., §157.7 (b)(3). See id., § 260.7. See Federal Power Commission, Annual Reports, 1963-1967; Federal Power Commission, The Gas Supplies of Interstate Natural Gas Pipeline Companies, Calendar Years 1963 and 1964 (February 1966); Federal Power Commission, The Gas Supplies of Interstate Natural Gas Pipeline Companies, Calendar Years 1964 and 1965 (August 1967). The producers assert that the end-use aspect of the need issue is not properly before us because the New York Public Service Commission failed to raise the issue in its petition for rehearing before the Commission, as required by § 19 (b) of the Natural Gas Act, 15 U. S. C. § 717r (b). Since the Court of Appeals did rule on the end-use question, and since we hold in favor of the producers on all parts of the need issue, we think it appropriate to reach the question without passing upon the producers’ procedural claim. See California v. Lo-Vaca Gathering Co., 379 U. S. 366, 369-370; Mississippi River Fuel Corp. v. FPC, 102 U. S. App. D. C. 238, 252 F. 2d 619, 623-625. The Commission elsewhere has conceded that the administrative burden of such a procedure would not be unbearable. See Memorandum for the Federal Power Commission in Austral Oil Co. v. FPC, No. 504, October Term, 1967, at 5-6. See FPC v. Hunt, 376" }, { "docid": "5268850", "title": "", "text": "a time, and to order refunded that portion of the increase which, after hearing, it determines to be unlawful. Thus the Act provides for investigation of changed rates which have been filed; but it does not contemplate that the Commission may refuse to file a tendered new schedule showing changes in rates, or that it may summarily reject or disallow the new schedule without a hearing.” 294 F.2d at 248-49. The court further held that Section 16 of the Gas Act (the counterpart of Section 4(i) of the Communications Act) did not authorize the FPC to circumvent the rate making scheme set forth in Sections 4(d) and 4(e) of that Act. Cf. United Gas Pipe Line v. Mobil Gas Service Corp., 350 U.S. 332, 343 (1956). Despite the square holding in Willmut —construing a statutory plan for company initiated rate changes similar to that under the Communications Act — that the FPC lacks the authority to “refuse to file a tendered new schedule showing changes in rates, or . summarily [to] reject or disallow the new schedule without a hearing”, the Commission in the instant ease nevertheless maintains that the special permission requirement of the order under review should be upheld. It argues that the statutory scheme of the Communications Act, particularly Section 203(b), is distinguishable from the Gas Act and does not preclude the special permission requirement. The Commission, in denying the petition for reconsideration of its order with respect to the special permission requirement, stated: “Section 203(b) furnishes this Commission with substantially greater latitude than that provided the Federal Power Commission by Section 4(d) [of the Natural Gas Act] with respect to tariff filing practices. Section 203(b) states: ‘ . . . the Commission may, in its discretion and for good cause shown, modify the requirements made by or under authority of this section in particular instances or by a general order applicable to special circumstances or conditions.’ No such grant of authority is conveyed by Section 4(d): that section merely permits the Federal Power Commission to allow tariff changes to take effect without thirty days notice; it" }, { "docid": "13541893", "title": "", "text": "the lack of fair notice and an adequate record on which the prices were set here would still require us to remand this case. 483 F.2d at 1263-64. The notice basis for the Mobil decision was accepted by our court in American Public Gas Association v. F.P.C., 162 U.S.App.D.C. 176, 498 F.2d 718 (1974) , a decision otherwise in conflict with the hearing discussion in Mobil. We held in American Public Gas Association that the Commission had appropriately resorted to rulemaking in determining initial rates for independent-producer areas under Section 7 of the Natural Gas Act and that in doing so the requirements of due process were also satisfied. Pointing out that the relevant sections of the Act contained no “on the record” provision for rulemaking, 5 U.S.C. § 553(c), the court held that those sections on their face “do not require the Commission to follow the formal procedure of sections 556 and 557” of the APA. The Commission, we held, “is not forced to adopt the procedures of a trial, with formal hearings, oral testimony under oath, cross-examination and the like. Evidentiary submission in written form may be sufficient”, citing in support United States v. Florida East Coast Rwy. Co., supra, F.P.C. v. Texaco, supra, and our Mobil case, supra. We said further: The procedure chosen by the Commission must of course give the parties fair notice of exactly what the Commission proposes to do, together with an opportunity to comment, to object, and to make written submissions; and the final order of the Commission must be based upon substantial evidence. See United States v. Florida East Coast Rwy. Co., supra, 410 U.S. 224, 241, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). We think the Commission’s procedures here meet this test. 498 F.2d at 722. In this connection see also, Public Service Commission of the State of New York v. FPC, 151 U.S.App.D.C. 307, 312, 467 F.2d 361, 366 (1972). Not long after came Shell Oil Co. v. FPC, 520 F.2d 1061 (5th Cir. 1975), certiorari denied sub nom. California Co. v. FPC, 426 U.S. 941, 96 S.Ct. 2660," }, { "docid": "15759509", "title": "", "text": "or any attempt to forthrightly distinguish or outrightly reject apparently inconsistent precedent, we are left with no guideposts for determining the consistency of administrative action in similar cases, or for accurately predicting future action by the Commission. The failure to admit or explain such a basic change in the interpretation of a statutory standard to be applied to conduct of the public undermines the integrity of the administrative process. See Atchison, supra, 412 U.S. at 807-08, 93 S.Ct. at 2374-75. Hence we remand to require the Commission to state its rationale for the new standard, and to explain its change of direction, so that we and future applicants may be assured as to the nature and grounds for the standard of proof under section 305(b). C. The Lack of Sufficient Notice to Petitioner of New Standard The Administrative Procedure Act requires that a person involved in an agency adjudicatory hearing “shall be timely informed of . .. [the] law asserted.” 5 U.S.C. § 554(b)(3). Courts have uniformly held that for an agency to meet this obligation where it seeks to change a controlling standard of law and apply it retroactively in an adjudicatory setting, the party before the agency must be given notice and an opportunity to introduce evidence bearing on the new standard. E.g., American Louisiana Pipe Line Co. v. FPC, 344 F.2d 525, 528-29 (D.C.Cir.1965), citing Hill v. FPC, 335 F.2d 355 (5th Cir. 1964); United Gas Pipe Line v. FERC, 597 F.2d 581, 586-88 (5th Cir. 1979) (demonstrating relation of this requirement to NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974)); Giles Lowery Stockyards, Inc. v. Department of Agriculture, 565 F.2d 321, 325 (5th Cir. 1977), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978); and Port Terminal RR Ass’n v. United States, 551 F.2d 1336, 1345 (5th Cir. 1977) (demonstrating relation of this requirement to SEC v. Chenery, 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). See also Public Service Comm’n v. FERC, 584 F.2d 1084 (D.C.Cir.1978); Boston Edison Co. v. FPC, 557 F.2d" }, { "docid": "10916789", "title": "", "text": "v. F. P. C., 334 F.2d 1002 (3d Cir.), the same court held that those objecting to filings under section 4 should have an opportunity to be heard and there be a “full hearing.” See also Hill v. F. P. C., 335 F.2d 355 (5th Cir.). In Murphy Oil Corp. v. F. P. C., 431 F.2d 805 (8th Cir.), the court considered FPC action on a rate application without a hearing. The Commission had sought to handle the issue under section j.6 of the Natural Gas Act, but the court held that a “hearing” was required, which was understood to mean a formal hearing. The court in American Louisiana Pipe Line Co. v. F. P. C., 120 U.S.App.D.C. 140, 344 F.2d 525, held an evidentiary record was required with a decision based upon the facts so developed and not upon the regulatory experience of the agency. F. P. C. v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037, must be regarded as a significant case as to the issues before us. It is apparent that the nature of the proof required and the method of the Commission is now much different in the area rate cases such as the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312, but this should not bring about a different result as to the fundamental nature of the hearings. The practices of the Commission have changed during the many years it has been in existence, but a present feeling' of urgency, as indicated in the Commission’s brief, should not overcome the statutory or constitutional requirements for a full hearing. The FPC here relies on Hunt Oil Co. v. F. P. C., 424 F.2d 982 (5th Cir.), which is important, but is cited principally for the statement in it that area rate proceedings are quasi-legislative and thus not quasi-judicial. This is useful as a generality, but it does not assist us much in our problem. The relation of the Administrative Procedure Act to the Natural Gas Act provisions has been elsewhere considered in detail and" }, { "docid": "5268848", "title": "", "text": "petition, it does not warrant disregard of Sections 203-05. Rather, in exercising authority pursuant to Sections 4(i), 4(j) or 403, the Commission’s action must not be inconsistent with Sections 203-05. Furthermore, the Commission’s claim that Sections 4(i) and 4(j) support the special permission requirement of the order under review is inconsistent with the rationale and holding of Willmut Gas & Oil Co. v. FPC, 294 F.2d 245 (D.C. Cir.1961), cert, denied, 368 U.S. 975 (1962). Willmut involved an appeal from an order of the FPC which refused to reject a tariff revision filed by a wholesaler of natural gas. Pursuant to the rate filing provisions of the Natural Gas Act, which are similar to those of the Communications Act, the wholesaler had filed annual tariff revisions during the period 1955 to 1960 increasing the price to Willmut, a local distributor. Each rate revision had been filed, and then had become effective after being suspended for the maximum statutory period. Meanwhile, the FPC was investigating the 1955 increase. Before the hearing on the 1960 increase had begun, Willmut petitioned the Commission to reject it. The Commission denied the petition. Willmut appealed and argued inter alia that the new filings would frustrate the pending investigation of prior rates and that the Commission could and should have rejected the tariff modifications. 294 F.2d at 246-49. The Court of Appeals for the District of Columbia Circuit rejected these contentions. It held that the Commission had authority notwithstanding subsequent rate revisions to continue its pending investigation “as to whether the rates previously filed were lawful for the period from the date of filing until they were superceded by a later filing, and to order a refund . . . .’’Id. at 249. The court also held that: “Section 4(d) of the [Natural Gas] Act does not give the Commission the discretion to reject schedules of increased rates tendered by a natural gas company .... The Commission’s power with respect to a filed increase is found in Section 4(e): to initiate a hearing as to the lawfulness of the changed rates, to suspend their effectiveness for" }, { "docid": "10916790", "title": "", "text": "us. It is apparent that the nature of the proof required and the method of the Commission is now much different in the area rate cases such as the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312, but this should not bring about a different result as to the fundamental nature of the hearings. The practices of the Commission have changed during the many years it has been in existence, but a present feeling' of urgency, as indicated in the Commission’s brief, should not overcome the statutory or constitutional requirements for a full hearing. The FPC here relies on Hunt Oil Co. v. F. P. C., 424 F.2d 982 (5th Cir.), which is important, but is cited principally for the statement in it that area rate proceedings are quasi-legislative and thus not quasi-judicial. This is useful as a generality, but it does not assist us much in our problem. The relation of the Administrative Procedure Act to the Natural Gas Act provisions has been elsewhere considered in detail and need not be repeated here other than to state the conclusion that even if the Natural Gas Act does not expressly require a full evidentiary hearing, it does require a “hearing on the record,” and thus if the Administrative Procedure Act is operative, a hearing to meet its requirements set out in 5 U.S.C. §§ 556 and 557 is necessary. On the requirements of the Administrative Procedure Act as to rulemaking by the ICC, the Supreme Court has recently decided United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453. This treats the application of 5 U.S.C. §§ 556 and 557 (the APA) when rules are required to be “on the record.” The Court there said: “Because the proceedings under review were an exercise of legislative rulemaking power rather than adjudicatory hearings as in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), and Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); and because" }, { "docid": "9728540", "title": "", "text": "by operating more efficiently to reduce its unit cost of service. * * * [Original emphasis.]” It is clear that in making the changeover, American Louisiana contemplated that the specific dollars and cents form of the contract-demand rate would allow greater revenues. Indeed it is unrealistic to take the position that the dissatisfaction of American Louisiana with a rate which permits it to obtain “its proper cost-of-service and return” is due to other than the fact that the contract-demand rate it seeks would permit it to obtain more. III Apart from the question whether the proposed changeover in rate form involved a rate increase as to which American Louisiana must sustain the burden of proof under Section 4, the Commission was in any event justified in concluding, contrary to the Examiner, that American Louisiana’s change to a conventional rate should be denied. Under Section 5(a) of the Natural Gas Act, 52 Stat. 823 (1938), 15 U.S.C. § 717d (1958), the Commission has the power to declare unlawful “any rate, charge or classification demanded, observed, charged or collected” and, under that section, to determine the just and reasonable rate and fix the same by order. See Mississippi River Fuel Corp. v. FPC, 102 U.S.App.D.C. 238, 243, 252 F.2d 619, 624 (1957). As to the interdependence of Sections 4 and 5 of the Natural Gas Act, see United Gas Pipe Line Co. v. Mobil Gas Co., 350 U.S. 332, 341-345, 76 S.Ct. 373, 100 L.Ed. 373 (1956). The Commission found that American Louisiana’s contract-demand rate form as proposed was “unlawful under the Act and should be disallowed”; and it provided that American Louisiana’s “just and reasonable rates for the future are as prescribed” in the Commission’s order. The opinion gave adequate reasons for these conclusions, with adequate support in the record. It pointed out the special circumstances posed by American Louisiana, which sells practically all of its gas to affiliated companies. As was urged upon the Commission, the cost-of-service form of rate “minimizes inter-affiliate transactions which afford the possibility of manipulation and excessive earnings.” ****And the Commission stated: “the seller’s charges to" } ]

[ { "docid": "10143230", "title": "", "text": "whether to award the trustee recovery of the property transferred or the value of the property transferred. In re Taylor, 599 F.3d 880, 890 (9th Cir. 2010). The factors which a court should consider in determining whether to order turnover of the property rather than payment of the property’s value include, whether the value of the property is (1) contested; (2) is not readily determinable; or (3) is not diminished by conversion or depreciation. In re Centennial Textiles, Inc., 220 B.R. 165, 177 (Bankr. S.D.N.Y. 1998) (citing In re Aero-Fastener, Inc., 177 B.R. 120, 139 (Bankr. D. Mass. 1994). The factors are -written in the disjunctive; therefore, all three must not be present for a court to order turnover. Here, two factors are present: the value of the barge being highly contested, and it’s value being not readily determinable based on the appraisals submitted. As such, this Court finds that there is a sufficient lack of evidence as to the value of the barge such that an order to return and sell the barge is necessary. Section 550 provides that an estate may recover the full value of an avoided transfer because § 550 is designed and intended to return the bankruptcy estate to the financial position that it would have been in had the fraudulent transfer never occurred. In re Consolidated Yacht Corp., 337 B.R. 711 (Bankr. S.D. Fla. 2006)(citing, Morris v. Kansas Drywall Supply Co., Inc., (In re Classic Drywall, Inc.), 127 B.R. 874, 876 (D. Kan. 1991). One component of that analysis is § 550(e), which permits the recipient of the fraudulent transfer to recover monies it expended to preserve the transferred property, if, and only if, the transferee accepted the transfer in good faith. Section 550(e) is applicable from an equitable perspective because § 550 is intended to return the debtor to the position it would have been had the transfer not occurred — not to return it to a better position. Id. at 714. As previously stated, “good faith” is not a defined term in the Bankruptcy Code, and is properly determined on a case-by-case" } ]

[ { "docid": "4941591", "title": "", "text": "Kmart Carp. (In re KMart Corp.), 381 F.3d 709, 714 (7th Cir. 2004); In re Suburban W. Properties, LLC, 504 B.R. 477, 483 (Bankr. N.D. Ill. 2013) (Barnes, J.) (“the Debtor—as the movant—bears the burden of proof’). This case is no exception. The same standard applies when a movant is trying to enforce a provision of a confirmed chapter 11 plan. See In re Irwin, 558 B.R. 743, 750 (Bankr. E.D. Pa. 2016) (burden of proof fell on the plan’s liquidating agent, who had moved to compel debtor’s payment pursuant to the confirmed plan). As is customary in bankruptcy, this burden is satisfied by a preponderance of the evidence. E.g., In re Woodbrook Assocs., 19 F.3d 312, 317 (7th Cir. 1994) (motion to dismiss case); In re Chicago Const. Specialties, Inc., 510 B.R. 205, 211 (Bankr. N.D. Ill. 2014) (Barnes, J.) (motion to authorize the debtor to reject all collective bargaining agreements); In re Chicago, Missouri & W. Ry. Co., 133 B.R. 488, 440 (Bankr. N.D. Ill. 1991) (Schwartz, C.J.) (motion for summary judgment). Guidance on how a debtor should proceed in seeking to enforce a discharge injunction is helpful in this matter. In that regard, The Debtors bear the burden of proof on this Motion .... In re Pincombe, 256 B.R. 774 (Bankr. N.D. Ill. 2000). To sustain the burden in this case, the Debtors must first prove that the debt at issue was discharged. In re Stoneking, 222 B.R. 650 (Bankr. M.D. Fla. 1998) (primary issue in action to enforce the § 524(a) injunction is whether the debt is one which was discharged); In re Toussaint, 259 B.R. 96 (Bankr. E.D.N.C. 2000) (creditor’s claim was not discharged, therefore no violation could occur). Once it has been determined that the debt was discharged, [the creditors] may be held in contempt if they willfully violated the injunction. In re Andrus, 184 B.R. 311 (Bankr. N.D. Ill. 1995). This burden is met by establishing that [the creditors] (1) had knowledge of the post-discharge injunction; and (2) intended the actions which violated the injunction. Hardy v. United States (In re Hardy), 97" }, { "docid": "16130508", "title": "", "text": "165. . It was public knowledge that Facebook planned an initial public offering. See http:// www.cbsnews.com/news/facebook-poised-for-ipo. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 110-1, ¶¶ 28-29. . Adv. Pro. No. 8:13-ap-479-CED. . Berkman Case, Doc. No. 213. . Fla. Stat. § 726.101, et seq. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 1. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 109. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 62. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 91. . SAM Case, Doc. No. 168. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 1, 45. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 31, 41. . Adv. Pro. No. 8:13-ap-336-CED, Doc. Nos. 94-98; Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 75-78. Alco is a party only to Adv. Pro. No. 8:13-ap-336-CED. . Each. No. 150. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 122, ¶¶ 15-16. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 124. . See, e.g., In re Equipment Acquisition Resources, Inc., 2014 WL 1979366 (N.D.Il. May 15, 2014) (granting summary judgment to transferee on issue of good faith defense under § 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably" }, { "docid": "22524359", "title": "", "text": "be kept in a common premium account as long as there were adequate records of the sources of these funds. The court finds that this is sufficient \"segregation\" to satisfy the requirement that the fiduciary duties be created prior to the act of defalcation. Id. (internal citations omitted) (emphasis added). Unlike the statutory trust at issue in Quaif , PACA does not require the segregation of trust assets prior to a defalcation. Rather, PACA trust assets may be commingled. 7 C.F.R. § 46.46(b) (\"Trust assets are to be preserved as a nonsegregated 'floating' trust. Commingling of trust assets is contemplated.\"). Moreover, federal courts interpreting PACA have read the statute and its concomitant regulations to mean that no segregation is required. See, e.g., In re Cherry Growers, Inc., 576 B.R. 569, 576 (Bankr. W.D. Mich. 2017) (\"PACA and the associated regulations expressly contemplate commingling of trust and non-trust property.\"); Frio Ice at 159. This Court concludes that the authority of PACA dealers to comingle trust assets with other assets precludes a finding that a PACA trust is a technical trust. Not all courts agree that Quaif mandates segregation. See General Produce, Inc. v. Tucker (In re Tucker) , Adv. Pro. No. 06-5107, 2007 WL 1100482, at *4 (Bankr. M.D. Ga. April 10, 2007) (finding segregation is not required so long as the trust res is identifiable and discussing cases with similar holdings). However, some lower courts in the Eleventh Circuit independently have held that segregation is a mandatory element of a technical trust. Several bankruptcy court opinions from the Middle District of Florida refer to a three-part test for determining the existence of a technical trust, and segregation is one of the three essential elements. See, e.g., Cardile Bros. Mushroom Pkg, Inc. v. McCue (In re McCue) , 324 B.R. 389, 392-93 (Bankr. M.D. Fla. 2005) (citing American Surety & Casualty Co. v. Hutchinson (In re Hutchinson) , 193 B.R. 61, 65 (Bankr. M.D. Fla. 1996) for the three-part test, and holding that a PACA trust is not a technical trust because trust assets can be comingled); Cladakis v. Triggiano (In" }, { "docid": "9098783", "title": "", "text": "E.D.N.C. 2006) (\"Deciphering this puzzle is like trying to solve a Rubik's Cube that arrived with a manufacturing defect.\"); In re Steinhaus, 349 B.R. 694, 706 (Bankr. D. Idaho 2006) (\"[I]t appears unmistakable that Congress drafted, or allowed to be drafted by others and then enacted, provisions with 'loose' and imprecise language.\"). Other cases in which the court adopted the Majority Approach include Witkowski v. Knight, 523 B.R. 291, 296-97 (1st Cir. BAP 2014) ; In re Holcomb, 380 B.R. 813, 815-16 (10th Cir. BAP 2008) ; In re Jumpp, 356 B.R. 789, 793-97 (1st Cir. BAP 2006) ; In re Weil, 2013 WL 1798898, 2013 U.S. Dist. LEXIS 60500 (D. Conn. 2013) ; In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016) ; In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015) ; In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011) ; In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010) ; In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007) ; In re Gillcrese, 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006) ; In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006) ; In re Harris, 342 B.R. 274, 276-280 (Bankr. N.D. Ohio 2006) ; In re Hollingsworth, 359 B.R. 813, 814 (Bankr. D. Utah 2006) ; In re Johnson, 335 B.R. 805, 806-07 (Bankr. W.D. Tenn. 2006) ; In re Jones, 339 B.R. 360, 363-65 (Bankr. E.D.N.C. 2006) ; In re Pope, 351 B.R. 14, 15-16 (Bankr. D.R.I. 2006) ; In re Rice, 392 B.R. 35, 38 (Bankr. W.D.N.Y. 2006) ; In re Williams, 346 B.R. 361, 368-70 (Bankr. E.D. Pa. 2006). Cases in which the court adopted the Minority Approach include In re Reswick, 446 B.R. 362, 365-73 (9th Cir. BAP 2011) ; St. Anne's Credit Union v. Ackell, 490 B.R. 141, 143-45 (D. Mass. 2013) ; In re Smith, 573 B.R. 298, 304 (Bankr. D. Me. 2017), aff'd sub nom. Smith v. Maine Bureau of Revenue Servs., 2018 WL 2248586, 2018 U.S. Dist. LEXIS 82211 (D. Me. 2018) ; In re Wilson, 2014 WL" }, { "docid": "21625679", "title": "", "text": "L. Paskay, Chief Judge Emeritus of this Court and my bankruptcy law professor, and is employed here in his memory. Another apt phrase of his for use here would be, \"it is without peradventure that ....\" . See Fed. R, B. P. 2015(a)(5), (6). . Walton v. Whitcomb (Matter of Whitcomb), 479 B.R. 133, 140 (Bankr. M.D. Fla. 2012) (quoting In re Saturley, 131 B.R. 509, 517 (Bankr. D. Me. 1991)). .See, e.g., Vergos v. Mendes & Gonzales, PLLC (In re McCrary & Dunlap Constr. Co., LLC), 79 Fed.Appx. 770, 780 (6th Cir. 2003) (denial of all compensation based on noncompliance with Bankruptcy Code and Rules \"through mere negligence” not an abuse of discretion); Henderson v. Kisseberth (In re Kisseberth), 273 F.3d 714, 721 (6th Cir. 2001) (\"[t]o ensure [protection of both creditors and debtors against overreaching attorneys], bankruptcy courts have broad and inherent authority to deny any and all compensation where an attorney fails to satisfy the requirements of the Code and Rules”); Mapother v. Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472, 478 (6th Cir. 1996) (noting that in cases where attorneys have failed to disclose fee arrangements, courts have “consistently denied all fees”); Whitcomb, 479 B.R. at 145 (court ordered attorney to disgorge approximate amount of undisclosed post-petition additional fees attorney sought from debtor-clients); In re Valladares, 415 B.R. 617, 624-25 (Bankr. S.D. Fla. 2009) (full disgorgement of fees ordered based on attorney’s having “repeatedly and willingly” violated the Bankruptcy Code's disclosure requirements); In re Getter, 2009 WL 361379, *2-3 (Bankr. S.D. Fla. 2009) (court ordered disgorgement of undisclosed fees despite finding no intentional concealment of fee agreement); In re Gage, 394 B.R. 184, 191 (Bankr. N.D. Ill. 2008) (\"Many courts, perhaps the majority, punish defective disclosure by denying all compensation.”); cf.Prince v. Electro-Wire Products, Inc. v, Sirote & Permutt, P.C, (In re Prince), 40 F.3d 356, 361 (11th Cir. 1994) (\"While complete denial of fees [for not disclosing connections as required by § 328] may be extreme in some instances .... ‘This sanction serves to deter future wrongdoing by those punished and warn others" }, { "docid": "9031511", "title": "", "text": "the plan. Id. See, e.g., In re Romero, 539 B.R. 557, 560 (Bankr. E.D. Wis. 2015) ; In re Enders, 2015 WL 5772199, at *3 (Bankr. E.D. Wis. Sept 30, 2015) ; In re Willis, 460 B.R. 784 (Bankr. D. Kan. 2011) ; In re Sanchez, 384 B.R. 574 (Bankr. D. Ore. 2008). See, e.g., In re Marks, 394 B.R. 198 (Bankr. N.D. Ill. 2008) ; In re Hernandez, 2009 WL 1024621 (Bankr. N.D. Ill. Apr. 14, 2009) ; In re Brennan, 455 B.R. 237 (Bankr. M.D. Fla. 2009) ; In re Amaya, 585 B.R. 403 (Bankr. S.D. Tex. 2018). See also In re Cochran, 555 B.R. 892, 901 (Bankr. M.D. Ga, 2016) (finding Erwin's discussion of the congressional intent with respect to section 1325(a)(5)(B)(iii) to \"be the result of mere educated speculation\" rather than \"citations to formal legislative history\"); In re Bollinger, 2011 WL 3882275 (Bankr. D. Ore. Sept. 2, 2011) (noting that Erwin did \"not provide any sources for [its] holdings regarding the purpose of the statute\"). While the court bases this interpretation on the plain language of the statute, not policy concerns we also note that an interpretation requiring actual distributions to secured creditors to be made in equal monthly amounts may present negative consequences for secured creditors, as well as prove to be administratively unworkable. While section 1326(a)(1)(C) permits certain adequate protection payments to be made directly to secured creditors, section 1326(a)(2) requires all other preconfirmation plan payments to the trustee to be retained by the trustee until confirmation and then distributed in accordance with the plan \"as soon as is practicable\" thereafter. 11 U.S.C. § 1326(a)(2). Generally, this results in a secured creditor receiving a lump distribution soon after confirmation of all the preconfirmation plan payments made to the trustee on its behalf. But, an interpretation requiring actual distributions to be equal would require the trustee to continue to hold a portion of the escrowed funds allocating them across the repayment period in equal monthly amounts, thereby delaying repayment o the very secured creditor that the equal monthly amount provision is intended to protect. Such" }, { "docid": "9031510", "title": "", "text": "protection\" payments to lenders while paying attorneys' fees, followed by larger payments after the fees are paid in full. Neither party here contends that the collateral at issue here, real estate, is depreciating in value or that Associated Bank is not adequately protected by the retention of its lien or that subsection (B)(iii)(II) somehow applies. See In re Williams, 583 B.R. 453 (Bankr. N.D. Ill. Apr. 10, 2018) ; In re Romero, 539 B.R. 557, 560 (Bankr. E.D. Wis. 2015) ; In re Kirk, 465 B.R. 300 (Bankr. N.D. Ala. 2012) ; In re Willis, 460 B.R. 784 (Bankr. D. Kan. 2011) ; In re Espinosa, 2008 WL 2954282 (Bankr. D. Utah Aug. 1, 2008) ; In re Williams, 385 B.R. 468 (Bankr. S.D. Ga. 2008) ; In re Sanchez, 384 B.R. 574 (Bankr. D. Ore. 2008) ; In re Denton, 370 B.R. 441 (Bankr. S.D. Ga. 2007). Unless the collateral happened to depreciate at a level such that the adequate protection payments would be equal and fully amortize the loan within the term of the plan. Id. See, e.g., In re Romero, 539 B.R. 557, 560 (Bankr. E.D. Wis. 2015) ; In re Enders, 2015 WL 5772199, at *3 (Bankr. E.D. Wis. Sept 30, 2015) ; In re Willis, 460 B.R. 784 (Bankr. D. Kan. 2011) ; In re Sanchez, 384 B.R. 574 (Bankr. D. Ore. 2008). See, e.g., In re Marks, 394 B.R. 198 (Bankr. N.D. Ill. 2008) ; In re Hernandez, 2009 WL 1024621 (Bankr. N.D. Ill. Apr. 14, 2009) ; In re Brennan, 455 B.R. 237 (Bankr. M.D. Fla. 2009) ; In re Amaya, 585 B.R. 403 (Bankr. S.D. Tex. 2018). See also In re Cochran, 555 B.R. 892, 901 (Bankr. M.D. Ga, 2016) (finding Erwin's discussion of the congressional intent with respect to section 1325(a)(5)(B)(iii) to \"be the result of mere educated speculation\" rather than \"citations to formal legislative history\"); In re Bollinger, 2011 WL 3882275 (Bankr. D. Ore. Sept. 2, 2011) (noting that Erwin did \"not provide any sources for [its] holdings regarding the purpose of the statute\"). While the court bases this interpretation" }, { "docid": "4452679", "title": "", "text": "Cline), 386 B.R. 344, 353-54 (Bankr.N.D.Ala.2008), Roach does not base her legal argument on the Court's order confirming her plan, so the Court assumes arguendo that the holding in Cline is correct. But see State of Fla. Dep’t of Revenue v. Gonzalez (In re Gonzalez), 823 F.3d 1251, 2016 WL 4245422, 2016 U.S. App. LEXIS 14789 (11th Cir. Aug. 11, 2016) (holding that the domestic support obligation exception to the automatic stay under 11 U.S.C. § 362(b)(2)(C) does not override the contrary provisions of a confirmed plan pursuant to 11 U.S.C, § 1327(a)). Neither Berry nor Cline address whether § 362(c)(3)(A) terminates the automatic stay completely or only as to property of the debtor. . Abernathy, LLC v. Smith, 2014 WL 4925654, 2014 U.S. Dist. LEXIS 137918 (N.D.Ga. Sept. 30, 2014); Chekroun v. Weil (In re Weil), 2013 WL 1798898, 2013 U.S. Dist. LEXIS 60500 (D.Conn. Apr. 29, 2013); U.S. Bank Nat'l Assoc. v. Mortimore (In re Mortimore), 2011 WL 6717680, 2011 U.S. Dist. LEXIS 146423 (D.N.J. Dec. 21, 2011); Witkowski v. Knight (In re Witkowski), 523 B.R. 291 (1st Cir. B.A.P. 2014); Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813 (10th Cir. B.A.P. 2008); Jumpp v. Chase Home Fin., LLC (In re Jumpp), 356 B.R. 789 (1st Cir. B.A.P. 2006); In re Daux, 2016 Bankr. LEXIS 2696 (Bankr.D.N.J. Jul. 22, 2016); In re Hale, 535 B.R. 520 (Bankr.E.D.N.Y.2015); In re Gautreaux, 2014 WL 4657433 (Bankr.E.D.La. Sept. 16, 2014); In re Williford, 2013 WL 3772840, 2013 Bankr. LEXIS 2871 (Bankr.N.D.Tex. Jul. 17, 2013); In re Rodriguez, 487 B.R. 275 (Bankr.D.N.M.2013); In re Scott-Hood, 473 B.R. 133 (Bankr.W.D.Tex.2012); In re Rueth, 2012 Bankr. LEXIS 5249 (Bankr.N.D.Ind. Nov. 8, 2012); Rinard v. Positive Investments, Inc. (In re Rinard), 451 B.R. 12 (Bankr.C.D.Cal.2011); In re Alvarez, 432 B.R. 839 (Bankr.S.D.Cal.2010); In re Dowden, 429 B.R. 894 (Bankr.S.D.Ohio 2010); In re Robinson, 427 B.R. 412 (Bankr.W.D.Mich.2010); In re Graham, 2008 WL 4628444, 2008 Bankr. LEXIS 2694 (Bankr.D.Or. Oct. 17, 2008); Independent Dealers Advantage, LLC v. Milledge (In re Milledge), 2008 WL 7866897, 2008 Bankr. LEXIS 1741 (Bankr.N.D.Ga. Apr. 10, 2008); In re Stanford," }, { "docid": "15185905", "title": "", "text": "risk for failing to maintain or insure the lender’s collateral.” Id. In Taylor, the Eleventh Circuit explicitly rejected the notion that the bankruptcy code allowed a debtor to “retain the property and to continue to make payments,” Id at 1516 (rejecting In re: Belanger, 962 F.2d 345 (4th Cir. 1992)). Following Taylor, bankruptcy courts reviewing motions to reopen and compel surrender of property have ruled in two opposing manners. Some cases have found that a debtor’s failure to reach a reaffirmation agreement is akin to agreeing to surrender the property in the state court foreclosure proceeding. In re: Steinberg, 447 B.R. 355, 358 (Bankr. S.D. Fla. 2011) (“Under Taylor, a debtor unwilling to reaffirm and unable to pay off the mortgage obligation is required to indicate an intent to surrender the home and to tender the property to the mortgagee.”). See also In re: Failla, 529 B.R. 786, 789 (Bankr. S.D. Fla. 2014) (“Where the debtor decides not to reaffirm, or the parties cannot negotiate a reaffirmation, or redemption is not economically feasible, the debtor has but one option: ‘surrender’ the collateral.’ ”)• (quoting In re: Plummer, 513 B.R. 135, 141 (Bankr. M.D. Fla. 2014), relying on In re: Pratt, 462 F.3d 14, 19 (1st Cir. 2006)); In re: Bartlett, No. 10-BK-23758-MGW (D.E. No. 21, Bankr. M.D. Fla. 2015) (reopening bankruptcy proceeding and holding that debtors constructively surrendered the subject property, as they failed to reaffirm or redeem the debt with the creditor in accordance with 11 U.S.C. § 521(a)(2) and In re: Taylor)-, In re: Picciano, No. 11-36787-PGH (D.E. No. 44, Bankr. S.D. Fla. 2015) (reopening bankruptcy proceeding and holding debtors are prohibited from retaining the property without an enforceable reaffirmation agreement or redemption of the property). Other courts have denied injunctive relief and distinguished Taylor. In re: Trus- sel, No. 12-bk-10001-KSJ, 2015 Bankr. Lexis 681, *3, 6 (Bankr. N.D. Fla. March 5, 2015) (“The Court... does not accept the legal conclusion that a debtor who cannot reach a reaffirmation agreement with a creditor automatically must surrender the property_[T]he typical remedy for failure to comply with intent to reaffirm" }, { "docid": "16130509", "title": "", "text": "§ 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably equivalent value when judgment creditor received payment under a supersedeas bond and subsequently released its judgment). . 138 B.R. at 830. . At the time, the United States Trustee had not yet filed suit to revoke Berkman’s discharge. . In re Seminole Walls & Ceilings Corp., 446 B.R. 572, 596 (Bankr.M.D.Fla.2011). . Nelson v. Cravero Constructors, Inc., 117 So.2d 764, 766 (Fla. 3d DCA 1960). . Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1319 (M.D.Fla.2009); In re Evergreen Security, Ltd., 319 B.R. 245, 254 (Bankr.M.D.Fla. 2003). . Wiand, 611 F.Supp.2d at 1319. . Evergreen Security, 319 B.R. at 255. . Exh. No. 108; Berkman Case, Doc. No. 162, ¶ 19. . Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). . Thompkins v. Lil Joe Records, Inc., 476 F.3d 1294, 1314 (11th Cir.2007). . 834 So.2d 285 (Fla. 2d DCA 2003). . 959 So.2d 322, 331-32 (Fla. 5th DCA 2007). . Thompkins v. Lil Joe Records, Inc., 476 F.3d at 1314. . In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d" }, { "docid": "21735986", "title": "", "text": "922—23 (Bankr. M.D. Fla. 2009) (explaining that ‘‘[f]or res judicata to apply, a party must establish the following four elements; ‘(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases involve the same parties or their privies; and (4) both cases must involve the same causes of action’ ”) (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)); In re DeMasi, 2015 WL 3956135, at *5 (Bankr. M.D. Fla, 2015) (explaining that \"Florida’s collateral estoppel doctrine forecloses relitigation if: ‘(1) the parties are identical with those from the prior case, (2) the issues are identical, (3) there was a full and fair opportunity to litigate the issues and they were actually litigated, and (4) those issues were necessary to the prior adjudication’ ”) (quoting Agripost, LLC v. Miami-Dade Cnty., 525 F.3d 1049, 1055 (11th Cir. 2008)), . 457 B.R. 130, 136 (Bankr. M.D. Fla. 2011) (citing Aeacus Real Estate Ltd. P'ship v. 5th Ave. Real Estate Dev., Inc., 948 So.2d 834 (Fla. 4th DCA 2007)); see also State v. McBride, 848 So.2d 287, 291 (Fla. 2003) (explaining that the Florida Supreme Court \"has long recognized that res judicata will not be invoked where it would defeat the ends of justice\" and that \"collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice”). . Anson, 457 B.R. at 136. . McBride, 848 So.2d at 291. . Id. . Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366, 369 (Fla. 1953) (quoting Gordon v. Gordon, 59 So.2d 40 (Fla. 1952)). . Anson, 457 B.R. at 135—36, . Id. at 133. . Id. . Id. at 133—34. . Id. at 136. . Id. . Debtor’s Ex. 11 at p. 30, 1. 24—p. 33, 1, 3. . Id. at p. 19, 11. 1—6. . Debtor's Ex. 2 at Amended Plan, § C.3.n . See Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (\"Put differently, we do not believe" }, { "docid": "10135401", "title": "", "text": "a homestead\") (emphasis added). . In re Harle, 422 B.R. 310, 313-14 (Bankr. M.D, Fla, 2010). . Semple v. Semple, 82 Fla. 138, 89 So. 638, 639 (1921) (emphasis added). . Cl Bank’s Trial Ex. 2. . In re McClain, 281 B.R. 769, 773-74 (Bankr. M.D. Fla. 2002). . In re Bratty, 202 B.R. 1008, 1010 (Bankr. S.D. Fla, 1996) (citing Smith v. Hamilton, 428 So.2d 382 (Fla. 4th DCA 1983)). . Debtor's Composite Ex. 2. . 19 Fla. 191, 195-96 (Fla. 1882) (emphasis added). . 18 Fla, 756 (Fla. 1882). . Id, at 757. . Id, at 758. . Id. at 760. . Arguably, there is one other distinguishing fact. In Hewlett, the homeowner failed to allege he had undertaken any repairs to make the claimed homestead livable. Here, by contrast, the Debtor ripped up the carpet, sprayed some mold killer, and purchased some minimal supplies to repair the property. Those minimal steps, taken over a three-year period, do not make this case meaningfully different from Hewlett. . The Court is aware, from testimony elicited at trial, that a renter had been living at the 36415 Eunice Drive property at some point before the Debtor moved in for ten days. This fact does not change the Court's analysis. To the extent it belies the point that the property was unlivable when the Debtor moved it, it would likewise defeat the Debtor’s claim that he intends to make the property his permanent residence but is prevented from doing so by its state of disrepair. . See, e.g., Drucker v. Rosenstein, 19 Fla. 191, 194 (Fla. 1882). . In re Alexander, 346 B.R. 546, 549 (Bankr. M.D. Fla. 2006)." }, { "docid": "12603510", "title": "", "text": "BAP 2006); Abernathy, LLC v. Smith, No. 1:13— CV-03801-RWS, 2014 WL 4925654, at *4-5 (N.D. Ga, Sept. 30, 2014); Chekroun v. Weil (In re Weil), No. 3:12cv462 (SRU), 2013 WL 1798898, at *3 (D. Conn. Apr. 29, 2013); U.S. Bank N.A. v. Mortimore (In re Mortimore), No. 11-955 (RMB), 2011 WL 6717680, at *5 (D.N.J. Dec. 21, 2011); In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016); In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015); In re Rodriguez, 487 B.R. 275, 286-88 (Bankr. D.N.M. 2013); In re Williford, No. 13-31738, 2013 WL 3772840, at *2-3 (Bankr. N.D. Tex, July 17, 2013); In re Scott-Hood, 473 B.R. 133, 135-40 (Bankr. W.D. Tex. 2012) (analysis departs from majority and minority approaches and yet holds that section 362(c)(3)(A) terminates with respect to (1) debtor individually, (2) debtor’s exempt property ’that stands as collateral for a debt of debtor, and (3) certain leases); In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011); In re Alvarez, 432 B.R. 839, 840-43 (Bankr. S.D. Cal. 2010); In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010); In re Robinson, 427 B.R. 412, 414 (Bankr. W.D. Mich. 2010); In re Burnette, No. 09-00699-8-JRL, 2009 WL 961807, at *1-2 (Bankr. E.D.N.C. Apr, 2, 2009); In re Graham, No, 07-62339-fra11, 2008 WL 4628444, at *2-3 (Bankr. D. Or. Oct. 17, 2008); In re Milledge, No. 08-62839, 2008 WL 7866897, at *1-2 (Bankr. N.D. Ga. Apr. 10, 2008); In re Ajaka, 370 B.R. 426, 429 (Bankr. N.D. Ga. 2007); In re McFeeley, 362 B.R. 121, 124-26 (Bankr. D. Vt. 2007); In re Stanford, 373 B.R. 890, 893-95 (Bankr. E.D. Ark. 2007); In re Simonson, No. 06-22833 (MBK), 2007 WL 703542, at *1-2 (Bankr. D.N.J. Mar. 2, 2007); In re Taylor, No. 07-3105 5-KRH, 2007 WL 1234932, at *4-5 (Bankr. E.D. Va. Apr. 26, 2007); In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006); In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006); In" }, { "docid": "12603511", "title": "", "text": "In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010); In re Robinson, 427 B.R. 412, 414 (Bankr. W.D. Mich. 2010); In re Burnette, No. 09-00699-8-JRL, 2009 WL 961807, at *1-2 (Bankr. E.D.N.C. Apr, 2, 2009); In re Graham, No, 07-62339-fra11, 2008 WL 4628444, at *2-3 (Bankr. D. Or. Oct. 17, 2008); In re Milledge, No. 08-62839, 2008 WL 7866897, at *1-2 (Bankr. N.D. Ga. Apr. 10, 2008); In re Ajaka, 370 B.R. 426, 429 (Bankr. N.D. Ga. 2007); In re McFeeley, 362 B.R. 121, 124-26 (Bankr. D. Vt. 2007); In re Stanford, 373 B.R. 890, 893-95 (Bankr. E.D. Ark. 2007); In re Simonson, No. 06-22833 (MBK), 2007 WL 703542, at *1-2 (Bankr. D.N.J. Mar. 2, 2007); In re Taylor, No. 07-3105 5-KRH, 2007 WL 1234932, at *4-5 (Bankr. E.D. Va. Apr. 26, 2007); In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006); In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006); In re Harris, 342 B.R, 274, 276-280 (Bankr. N.D. Ohio 2006); In re Hollingsworth, 359 B.R, 813, 814 (Bankr. D. Utah 2006); In re Johnson, 335 B.R. 805, 806-07 (Bankr. W.D. Tenn. 2006); In re Jones, 339 B.R. 360, 363-65 (Bankr. E.D.N.C. 2006); In re Moon, 339 B.R. 668, 670-73 (Bankr. N.D. Ohio 2006); In re Pope, 351 B.R. 14, 15-16 (Bankr. D.R.I. 2006); In re Rice, 392 B.R. 35, 38 (Bankr. W.D.N.Y. 2006); In re Williams, 346 B.R. 361, 368-70 (Bankr. E.D. Pa. 2006). Minority: Reswick v. Reswick (In re Reswick), 446 B.R. 362, 365-73 (9th Cir. B.A.P. 2011); St. Anne’s Credit Union v. Ackell, 490 B.R. 141, 143-45 (D. Mass. 2013); In re Akwa, No. 15-26914-PM, 2016 WL 67219, at *1 (Bankr. D. Md. Jan. 5, 2016); In re Wilson, No. 13-21001 (ASD), 2014 WL 183210, at *1 (Bankr. D. Conn. Jan. 15, 2014); In re Jackola, No. 11-01278, 2011 WL 2518930, at *3 (Bankr. D. Haw. June 22, 2011); In re Furlong, 426 B.R. 303, 307 (Bankr. C.D. Ill. 2010); In re Daniel," }, { "docid": "10135400", "title": "", "text": "undisputed objective facts of this case, Cl Bank has met that burden. By separate order, the Court will deny the Debtor’s motion to avoid the judgment lien of Cl Bank. . Art. X, § 4, Florida Constitution.' . The Court’s findings of fact are based on the Debtor’s testimony at a July 15, 2015 final evidentiary hearing on his motion to avoid Cl Bank’s judicial lien. At the July 15 final evi-dentiary hearing, the Court also received into evidence Debtor’s Exhibits 1 and 2, as well as Cl Bank’s Exhibits 1-3. .Debtor’s Ex. 1. . Debtor's Composite Ex. 2. . Id. . Id. . Id. . Doc. No. 1. . Doc. No. 23. . Art. X, § 4, Fla. Const, . In re Bennett, 395 B.R. 781, 789 (Bankr. M.D. Fla. 2008) (quoting Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943)); see also Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla. 1962) (holding that \"intent alone is not a sufficient basis for the establishment of a homestead\") (emphasis added). . In re Harle, 422 B.R. 310, 313-14 (Bankr. M.D, Fla, 2010). . Semple v. Semple, 82 Fla. 138, 89 So. 638, 639 (1921) (emphasis added). . Cl Bank’s Trial Ex. 2. . In re McClain, 281 B.R. 769, 773-74 (Bankr. M.D. Fla. 2002). . In re Bratty, 202 B.R. 1008, 1010 (Bankr. S.D. Fla, 1996) (citing Smith v. Hamilton, 428 So.2d 382 (Fla. 4th DCA 1983)). . Debtor's Composite Ex. 2. . 19 Fla. 191, 195-96 (Fla. 1882) (emphasis added). . 18 Fla, 756 (Fla. 1882). . Id, at 757. . Id, at 758. . Id. at 760. . Arguably, there is one other distinguishing fact. In Hewlett, the homeowner failed to allege he had undertaken any repairs to make the claimed homestead livable. Here, by contrast, the Debtor ripped up the carpet, sprayed some mold killer, and purchased some minimal supplies to repair the property. Those minimal steps, taken over a three-year period, do not make this case meaningfully different from Hewlett. . The Court is aware, from testimony" }, { "docid": "21743407", "title": "", "text": "from “any immediate or mediate transferee of such transferee.” Id. Because the recovery under section 550(a) “is a form of disgorgement,” Baldi v. Lynch (In re McCook Metals, L.L.C.), 319 B.R. 570, 591 (Bankr. N.D. Ill. 2005), parties who neither received transferred property nor benefitted from a fraudulent transfer in some other way are not subject to liability, Krol v. Wilcek (In re H. King & Assocs.), 295 B.R. 246, 293 (Bankr. N.D. Ill. 2003) (stating that a trustee cannot recover from a “party who has not received any property or benefit from either the debtor or the debtor’s transferee, immediate or mediate”); see also Magten Asset Mgmt. Corp. v. Paul Hastings Janofsky & Walker LLP, No. Civ.A.04-1256-JJF, 2007 WL 129003, at *2 (D. Del. Jan. 12, 2007); Official Comm. of Unsec. Creditors v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am., Inc.), 405 B.R. 527, 548 (Bankr. D. Del. 2009); Sherman v. FSC Realty LLC (In re Brentwood Lexford Partners, LLC), 292 B.R. 255, 275 (Bankr. N.D. Tex. 2003). That includes liability for damages on an aiding and abetting theory. Overwhelmingly, courts have concluded that parties cannot be liable for a fraudulent transfer if all they have done is participate in it. See, e.g., Mack v. Newton, 737 F.2d 1343, 1357 (5th Cir. 1984); GATX Corp. v. Addington, 879 F.Supp.2d 633, 643 (E.D. Ky. 2012) (noting that “courts generally do not recognize aiding and abetting a fraudulent conveyance as a viable cause of action against a non-transferee”); Baker O’Neal Holdings, Inc. v. Ernst & Young LLP, No. 1:03-CV-0132-DFH, 2004 WL 771230, at *14 (S.D. lnd. Mar. 24, 2004) (“Accessory liability for fraudulent transfers cannot be supported by either the Bankruptcy Code or the [Indiana UFTA]”); Miller v. Greenwich Capital Fin. Prods., Inc. (In re American Bus. Fin. Servs., Inc.), 457 B.R. 314, 324 (Bankr. D. Del. 2011) (“Aiding and abetting a fraudulent transfer is not a valid claim under state or federal law where a trustee is bringing the claim.”); Ray v. Garland (In re Martin), Nos. 08-52631, 10-5059, 2011 WL 6130422, at *5 (Bankr. E.D. Tenn." }, { "docid": "22524360", "title": "", "text": "is a technical trust. Not all courts agree that Quaif mandates segregation. See General Produce, Inc. v. Tucker (In re Tucker) , Adv. Pro. No. 06-5107, 2007 WL 1100482, at *4 (Bankr. M.D. Ga. April 10, 2007) (finding segregation is not required so long as the trust res is identifiable and discussing cases with similar holdings). However, some lower courts in the Eleventh Circuit independently have held that segregation is a mandatory element of a technical trust. Several bankruptcy court opinions from the Middle District of Florida refer to a three-part test for determining the existence of a technical trust, and segregation is one of the three essential elements. See, e.g., Cardile Bros. Mushroom Pkg, Inc. v. McCue (In re McCue) , 324 B.R. 389, 392-93 (Bankr. M.D. Fla. 2005) (citing American Surety & Casualty Co. v. Hutchinson (In re Hutchinson) , 193 B.R. 61, 65 (Bankr. M.D. Fla. 1996) for the three-part test, and holding that a PACA trust is not a technical trust because trust assets can be comingled); Cladakis v. Triggiano (In re Triggiano) , 132 B.R. 486, 490 (Bankr. M.D. Fla. 1991) (adopting the same three-part test). Moreover, in an unpublished decision, the Eleventh Circuit affirmed a district court opinion from the Southern District of Florida that adopts the same three-part test. Donald Hanft, M.D., P.A. v. Church (In re Donald Hanft, M.D., P.A.) , 315 B.R. 617, 623 (S.D. Fla. 2002) (\"For a technical trust to exist, three elements must be present: (1) a segregated trust res ; (2) an identifiable beneficiary; and (3) affirmative trust duties established by contract or statute.\" (emphasis added) (citing In re Hutchinson , 193 B.R. 61, 65 (Bankr. M.D. Fla. 1996) ), aff'd sub nom. Hanft v. Church , 73 F. App'x 387 (11th Cir. 2003). Although the Eleventh Circuit did not expressly adopt a segregation requirement in Quaif , it repeatedly has described a segregation requirement as clear indicia of a technical trust relationship. That requirement is of critical importance in the context of this case, where (i) a statute is enacted specifically to prevent dissipation of assets" }, { "docid": "5048425", "title": "", "text": "is widely accepted. See, e.g., In re Owens Corning, 419 F.3d 195, 207 (3d Cir. 2005); In re Bonham, 229 F.3d 750, 764 (9th Cir. 2000); Reider v. Fed. Deposit Ins. Co. (In re Reider), 31 F.3d 1102, 1106-07 (11th Cir. 1994); Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C. Cir. 1987). Substantive consolidation of a non-debtor with a debtor, as here, is less common, but increasingly accepted. The trend toward greater court approval of substantive consolidation “has its genesis in the increased judicial recognition of the widespread use of interrelated corporate structures. ...” Eastgroup Props. [v. Southern Motel ], 935 F.2d [245] at 249 [(1991)] (quoting In re Murray Indus., Inc., 119 B.R. 820, 828-29 (Bankr. M.D. Fla. 1990)). “Without the check of substantive consolidation, debtors could insulate money through transfers among inter-company shell corporations with impunity.” In re Bonham, 229 F.3d at 764. Within this circuit, bankruptcy courts have approved the application of substantive consolidation to non-debtors, often in cases in which the non-debtor is a subsidiary or alter ego of the debtor. See, e.g., Gray v. O’Neill Props. Group, L.P. (In re Dehon, Inc.), No. 02-41045, 2004 WL 2181669, at *3 (Bankr. D. Mass. Sept. 24, 2004) (“Large corporations, such as the Debtor, often use mul-ti-tiered corporate structures, and substantive consolidation has been used to reach the assets and liabilities of a non-debtor subsidiary corporation.”); Murphy v. Stop & Go Shops, Inc. (In re Stop & Go of Am., Inc.), 49 B.R. 743, 745 (Bankr. D. Mass. 1985). In re Logistics Info. Sys., Inc., 432 B.R. at 10-12(footnote omitted). But see The Official Comm. of Unsecured Creditors v. The Archdiocese of St. Paul and Minneapolis, 562 B.R. 755 (D. Minn. 2016)(substantive consolidation cannot be used to circumvent 11 U.S.C. § 303(a) in the case of charitable organizations); In re Pearlman, 462 B.R. 849 (Bankr. M.D. Fla. 2012)(“allowing substantive consolidation of non-debtors under § 105(a) circumvents the stringent procedures and protections relating to involuntary bankruptcy cases imposed by § 303 of the Bankruptcy Code”). In Woburn Assocs. v. Kahn (In re Hemingway Transp.," }, { "docid": "12603509", "title": "", "text": "Regardless of which interpretation is applied, this Court finds that “with respect to the debtor” | does not place a limitation on the termination of the stay under § 362(c)(3)(A) with respect to the debt, property and lease mentioned in the fourth through sixth phrases discussed above. CONCLUSION For all of the foregoing reasons, the Court grants NY Liens’ motion to confirm that the automatic stay terminated in this case 30 days post-filing by operation of § 362(c)(3)(A), and further finds that the § 362(a) stay terminated with respect to any judicial, administrative or other formal proceeding commenced prepetition which relates to a debt or property securing such debt or a lease, regardless of whether the property or lease was property of the estate or property of the Debtor. . Majority: Witkowski v. Knight (In re Witkowski), 523 B.R. 291, 296-97 (1st Cir. BAP 2014); Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813, 815-16 (10th Cir. BAP 2008); Jumpp v, Chase Home Fin., LLC (In re Jumpp ), 356 B.R. 789, 793-797 (1st Cir. BAP 2006); Abernathy, LLC v. Smith, No. 1:13— CV-03801-RWS, 2014 WL 4925654, at *4-5 (N.D. Ga, Sept. 30, 2014); Chekroun v. Weil (In re Weil), No. 3:12cv462 (SRU), 2013 WL 1798898, at *3 (D. Conn. Apr. 29, 2013); U.S. Bank N.A. v. Mortimore (In re Mortimore), No. 11-955 (RMB), 2011 WL 6717680, at *5 (D.N.J. Dec. 21, 2011); In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016); In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015); In re Rodriguez, 487 B.R. 275, 286-88 (Bankr. D.N.M. 2013); In re Williford, No. 13-31738, 2013 WL 3772840, at *2-3 (Bankr. N.D. Tex, July 17, 2013); In re Scott-Hood, 473 B.R. 133, 135-40 (Bankr. W.D. Tex. 2012) (analysis departs from majority and minority approaches and yet holds that section 362(c)(3)(A) terminates with respect to (1) debtor individually, (2) debtor’s exempt property ’that stands as collateral for a debt of debtor, and (3) certain leases); In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011); In re Alvarez, 432 B.R. 839, 840-43 (Bankr. S.D. Cal. 2010);" }, { "docid": "18983165", "title": "", "text": "resulted in the distributions they received ... they had no duty to investigate further.”); Slone v. Lassiter (In re Grove-Merritt), 406 B.R. 778, 810 (Bankr.S.D.Ohio 2009) (holding that transferee was on inquiry notice because it \"had long known of the Debtor's financial problems”); Bowers & Merena Auctions, LLC v. Lull (In re Lull), 386 B.R. 261, 271 (Bankr. D.Haw.2008) (\"[T]he courts define good faith required by Section 548(c) to mean that viewed objectively, the transferee neither knew nor should have known of the fraudulent nature of the transfer.”) (quotations omitted); Jones v. Revels (In re Revels), No. 05-13351-3P7, 2007 WL 1756987, at *6-7, 2007 Bankr.LEXIS 4687, at *17-18 (Bankr. M.D.Fla. Jan.31, 2007) (\" 'Circumstances putting the transferee on inquiry notice as to a debtor’s insolvency ... .will preclude a transferee from asserting a good faith defense.’ ” (quoting Cuthill v. Kime (In re Evergreen Sec., Ltd.), 319 B.R. 245, 255 (Bankr.M.D.Fla. 2003))); Cadle Co. v. White, No. 02 Civ. 00030(TPS), 2006 WL 798900, at *8-9, 2006 U.S. Dist. LEXIS 11671, at *27-28 (D.Conn. Mar. 21, 2006) (\"The transferee’s knowledge is objectively judged by assessing whether the transferee knew or should have known of the transferor's fraudulent intent or financial pre cariousness.”); Enron Corp. v. Ave. Special Situations Fund II, LP (In re Enron Corp.), 333 B.R. 205, 234 (Bankr.S.D.N.Y.2005) (explaining that \"Courts have found that the transferee does not act in good faith if the transferee had knowledge of the debtor’s unfavorable financial condition at the lime of transfer .... [and] have further found 'a transferee does not act in good faith when he has sufficient knowledge to place him on inquiry notice of the debtor’s possible insolvency' ” (quoting lobin, 84 F.3d at 1336)); Cuthill v. Greenmark, LLC (In re World Vision Entm’t, Inc.), 275 B.R. 641, 659 (Bankr. M.D.Fla.2002) (“If the circumstances would place a reasonable person on inquiry of a debtor's fraudulent purpose, and diligent inquiry would have discovered the fraudulent purpose, then the transfer is fraudulent.... ‘[A] transferee does not act in good faith when he has sufficient knowledge to place him on inquiry notice of" } ]

[ { "docid": "19421216", "title": "", "text": "negotiations, conversations, and agreements made prior to its execution.\" Toy, 593 Pa. at 49, 928 A.2d 186. However, a written contract need not contain an express integration clause in order to be fully integrated. A written contract without an express integration clause can be considered fully integrated if it appears to reflect the parties' complete agreement. For example, in Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791 (1924), the Court stated: The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at, and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. Id. at 323, 126 A. 791 (internal citation omitted). This standard has been affirmed and developed in subsequent cases, see Yocca, 578 Pa. 479, 854 A.2d 425 ; Dunn v. Orloff, 420 Pa. 492, 218 A.2d 314 (1966) ; In re Boyd's Estate, 394 Pa. 225, 146 A.2d 816 (1958), and cited with approval by the Third Circuit. See, e.g., Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Investments, 951 F.2d 1399, 1405 (3d Cir. 1991). For example, in Dunn, the Pennsylvania Supreme Court stated that \"if a written agreement was intended by the parties to encompass the entire understanding between the parties, then evidence of a contrary nature, based upon an oral agreement at the time of the execution of the written agreement, was barred in the absence of fraud, accident or mistake.\" 420 Pa. at 495, 218 A.2d 314 (emphasis added). In other words, while a merger or integration clause will serve as a strong indication that the contract is fully integrated, the intention of the parties is also a key consideration in a court's analysis. The Court finds that the Management Agreement at" } ]

[ { "docid": "13050243", "title": "", "text": "reliance. Gibbs v. Ernst, 538 Pa. 193, 207-08, 647 A.2d 882, 889 (1994). i. Pennsylvania’s application of the parol evidence rule Like New York, Pennsylvania law also recognizes a cause of action for fraud in the inducement, although its application of the parol evidence rule has engendered some conflicting views of its practical viability, particularly where the written contract is fully integrated. The Pennsylvania Supreme Court has consistently applied the parol evidence rule to bar evidence of prior fraudulent representations only in cases involving written agreements that (1) contain terms that directly deal with the subject matter of the alleged oral representation and (2) represent the entire contract between the parties, particularly where the written agreement also contains an integration clause. In Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 499-500, 854 A.2d 425, 438 (2004), the Pennsylvania Supreme Court applied the parol evidence rule to bar admission of any evidence of previous representations regarding the location of seats in a new stadium where the final agreement for season ticket subscriptions (“Stadium Builder Licenses”) described a slightly different location of the seats. The court emphasized that, “[m]ost importantly, the SBL Agreement explicitly stated that it represented the parties’ entire contract regarding the sale of SBLs.” Yocca, 578 Pa. at 499-500, 854 A.2d at 438. See also, HCB Contractors v. Liberty Place Hotel Assocs., 539 Pa. 395, 399, 652 A.2d 1278, 1279-80 (1995) (barring evidence of prior representations that “relate to subjects that were specifically addressed -in the written contract” where the contract also contained an integration clause expressly overriding all prior oral representations). Although the Pennsylvania Supreme Court has used explicit language in its opinions requiring both the elements of related subject matter and integration, it has only had occasion to decide cases in which the subject matter of the alleged misrepresentations was specifically addressed in the written agreement. At least two Pennsylvania intermediate appellate courts have gone further, and when faced with fraudulent inducement claims in which the alleged misrepresentations dealt with subject matter not addressed by the written agreements, have, nonetheless, barred evidence of the misrepresentations simply" }, { "docid": "12777765", "title": "", "text": "there is a genuine dispute regarding an issue of material fact. The nonmoving party must produce more than a mere scintilla of evidence to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 262, 106 S.Ct. 2505, 2517, 91 L.Ed.2d 202 (1986). Indeed, the nonmoving party must produce evidence upon which the jury could reasonably find for the plaintiff. Id. Mellon cannot meet this burden. I. THE CONTRACT CLAIMS The Pennsylvania courts steadfastly adhere to the parol evidence rule which forbids “the introduction of parol evidence of antecedent or contemporaneous agreements, negotiations and understandings of the contracting parties for the purpose of varying or contradicting the terms of a contract which both parties intended to represent the definite and complete statement of their agreement.” American Bank & Trust Co. of Pennsylvania v. Lied, 487 Pa. 333, 409 A.2d 377, 381 (1979). See also McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222, 228 (1962). In re Furjanick’s Estate, 375 Pa. 484, 100 A.2d 85, 89 (1953). Whether a writing is the complete statement of the agreement is to be determined by examining the writing itself, and if “it is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking were reduced to writing.” Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791, 792 (1924). Thus, the question of integration is one for the court to decide by reference to the four corners of the agreement. Federal Deposit Ins. Co. v. Barness, 484 F.Supp. 1134, 1146 (W.D.Pa.1980). See also Mellon Bank, N.A. v. Aetna Business Credit, 619 F.2d 1001, 1010 n. 9 (3d Cir.1980). The agreement in the instant case was reduced to three separate, formal agreements which identified the property involved, the purchase price and the terms of repayment. Accordingly, we find that the writings were integrated and that therefore, the parol evidence rule is applicable. Mellon attempts to avoid the consequences of the parol" }, { "docid": "17100373", "title": "", "text": "stayed with Plaintiff had he not been fired is highly speculative. For the reasons discussed below, the Court will grant summary judgment on the issue of solicitation, and deny summary judgment on the matters of liquidated damages and the expert’s damage calculation. A. Meaning of Solicitation Defendants ask this Court to hold as a matter of law that “solicitation” is not ambiguous, that a “solicitation” requires the employer to first approach a potential employee, and that the mere act of hiring an employee is not considered solicitation. Defendants also request that the court prohibit Plaintiff from introducing at trial parol evidence that is contrary to this definition of solicitation. Under the parol evidence rule, “[wjhere the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement ... and its terms and agreements cannot be added to nor subtracted from by parol evidence.” Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 436 (2004) (quoting Gianni v. Russel & Co., 281 Pa. 320, 126 A. 791, 792 (1924)). Parol evidence is any oral testimony, written agreements, or other writings created prior to the contract that would serve to explain or vary the terms of a contract. Lenzi v. Hahnemann University, 445 Pa.Super. 187, 664 A.2d 1375, 1379 (1995). The rule, however, does allow the admission of evidence to explain an ambiguity in a contract “irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances.” Id. at 437 (quoting Estate of Herr, 400 Pa. 90, 161 A.2d 32, 34 (1960)). “Under Pennsylvania law, ambiguous writings are interpreted by the fact finder and unambiguous writings are interpreted by the court as a question of law.” Mellon Bank, N.A v. Aetna Business Credit, Inc., 619 F.2d 1001, 1010, n. 10 (3d Cir.1980). “Determining whether the terms of a contract are ambiguous is a question of law” for the court to decide. Ankerstjerne v. Schlumberger, Ltd., 155 Fed.Appx. 48, 49 (3d Cir.2005)." }, { "docid": "19421210", "title": "", "text": "conclusively presumed that [the writing represents] the whole engagement of the parties....\" An integration clause which states that a writing is meant to represent the parties' entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties' negotiations, conversations, and agreements made prior to its execution. Id. at 497-98, 854 A.2d 425 (citations omitted). Thus, if a court finds that the agreement in question is the parties' entire contract, \"the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract\" is inadmissible to explain or vary the terms of the contract, unless: (1) a term is ambiguous and parol evidence is offered to explain or clarify the ambiguity; or (2) a term was omitted from the contract because of fraud, accident, or mistake. Id. at 498, 854 A.2d 425. As to the second category, the Yocca court emphasized a distinction in the application of the parol evidence rule between claims for \"fraud in the inducement\" (i.e., fraudulent inducement) and claims for \"fraud in the execution\": Notably, while parol evidence may be introduced based on a party's claim that there was a fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Id. at 502 n. 26, 854 A.2d 425. Applying the above analytical framework, Yocca ultimately found that the parties' final agreement was fully integrated, thereby rendering inadmissible the brochure. Id. at 499, 854 A.2d 425. In addition to containing an integration clause, the final agreement appeared to be the entire agreement between the parties because it contained the detailed terms of the contract: [T]he [ ] Agreement detailed all of the terms and conditions of that sale, i.e., the precise number of seats to be sold to the named" }, { "docid": "19421221", "title": "", "text": "a contract is integrated). In fact, section 9.1, cited by Sodexo, is consistent with the Court's conclusion that the Management Agreement is integrated. The parties' obligations under section 9.1 are clear, requiring the parties to \"renegotiate on a mutually agreeable basis\" should there be a \"change in the conditions or the inaccuracy or breach of, or the failure to fulfill, any [ ] representation by a party.\" Just as determining compliance with section 9.1 requires reference to outside \"facts\" (i.e., was a representation inaccurate?), so too does determining compliance with any other contractual provision. For example, determining whether a party breaches a confidentiality clause requires proof of an improper communication imparting sensitive information; paying only partial invoice sums requires reference to bank receipts; and breach of a contractual provision requiring passing grades for Health Department inspections requires reference to failed inspections. Although external evidence would be required in each of the above examples to prove the case, that fact does not preclude a contract containing such provisions from being legally integrated, nor does it mean the contract is ambiguous. See supra. A party can still substantiate its case with evidence where the above situations are presented (in the above examples, for breach of contract). However, where the parties intend for a contract to be fully integrated and to reflect their complete agreement, as occurred with the Management Agreement, \"previous oral or written negotiations or agreements involving the same subject matter as the contract\" are inadmissible. Yocca, 578 Pa. at 498, 854 A.2d 425. The fact that § 9.1 refers to \"representations\" while § 10.11 refers to \"agreements\" does not change the Court's conclusion. e) Ambiguity Sodexo argues that it may introduce parol evidence because the term \"representations\" is ambiguous. Parol evidence is admissible based on the ambiguity of a contractual term where the parol evidence is presented \"to explain or clarify or resolve the ambiguity.\" Yocca, 578 Pa. at 498, 854 A.2d 425 ; see also Estate of Herr, 400 Pa. 90, 161 A.2d 32 (1960) ; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). Here, however, Sodexo's" }, { "docid": "834294", "title": "", "text": "to determine whether the matter sought to be orally proven has been integrated in the written agreement, by ascertaining from the conduct and language of the par-ties, and the surrounding circumstances, what was their intent. 5 Wigmore, § 2430. The difficulty arises in applying the rule. Onó of the best statements of the rule, and the test for applying it is this from Bryant v. Bryant, 295 Pa. 146, 144 A. 904, 906; “It is undoubtedly true that, where it is conceded or proven that a writing does not properly or fully state the agreement between the parties upon any given point, the written provisions in regard thereto may be explained or supplemented, and -the true state of facts established by parol evidence. * * * If the terms of the covenant are put in a writing, complete within itself, and couched in such terms as to disclose a complete legal obligation, without any uncertainty as to the object or extent of the engagement, it-is conclusively presumed to represent the whole contract of the parties and the extent and manner of their undertaking. Gianni v. Russell, 281 Pa. 320, 126 A. 791. The test, to determine whether an alleged parol agreement, by which it is proposed to modify the expressed understanding, comes within the field embraced by the writing, is to compare the two and determine whether parties, situated as were the ones to the contract, would naturally and normally include the one in the other, if it were made. Wagner v. Marcus, 288 Pa. 579, 136 A. 847.” Bryant v. Bryant, supra. Turning to. the facts of the ease in an effort to apply the rule to its solution, we easily reach the conclusion, in the light of the history of the negotiations, beginning in New York and concluding in Florida, of the demand of Breuchaud that he be released from his personal warranty so that he could borrow money from the bank, of the written memorandum made by Rankin, showing ““release from notes,” the insistence of Rankin that he would not let the trade go through except Breuchaud" }, { "docid": "16058847", "title": "", "text": "the satisfaction of one requirement only, that is, the fact that the amended contract was fully integrated. Id. Although Wall criticized Greylock for failure to employ both prongs of the analysis, it did not criticize or comment upon the Greylock Court’s conclusion that the Amended Contract was fully integrated by operation of the incorporation clause. . To the extent the Landlord Defendant and APA Minority Member Defendants argue that the alleged misrepresentation is not barred by the parol evidence rule, but rather constitutes an invalid modification to the Starr Leases, this argument is also unavailing at the motion to dismiss stage. Defendants argue that because the parties agreed that modifications could only be made in writing, any contention that the oral misrepresentation (namely, that \"RumJungle” and \"English is Italian” would \"definitely open”) modified the original lease, is without merit. Specifically, in the original leases, the parties agreed, \"[ejxcept as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless in writing, signed by them and approved by Landlord's mortgagee.” Starr Pis.’ Compl. Exs. A & 13.,¶ 24.3. Under Pennsylvania law, an agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties' conduct clearly shows the intent to waive the requirement that the amendments be made in writing. Accu-Weather v. Prospect Commc’ns., 435 Pa.Super. 93, 644 A.2d 1251, 1255 (1994). However, an oral contract modifying a prior written contract must be proven by \"clear, precise and convincing evidence.” Somerset Cmty. Hosp. v. Mitchell & Assocs., Inc., 454 Pa.Super. 188, 685 A.2d 141, 146 (Pa.Super.Ct.1996) (citing Pellegrene v. Luther, 403 Pa. 212, 169 A.2d 298, 299 (1961)). Accordingly, at the motion to dismiss stage, an oral modification to the written lease is not per se invalid. Starr Plaintiffs are entitled to discovery to prove that the conduct of the parties shows an intent to orally amend the contract." }, { "docid": "19421209", "title": "", "text": "finding that the brochure in question constituted part of the parties' final agreement. Id. at 942. The Pennsylvania Supreme Court held that the Commonwealth Court had improperly reversed the trial court's order dismissing plaintiffs' \"breach of contract claims because the parol evidence rule bars any consideration of [the plaintiffs'] claims, which are wholly based on the terms in the [ ] Brochure.\" 578 Pa. at 496-97, 854 A.2d 425. The Pennsylvania Supreme Court explained that, as a threshold matter, the parol evidence rule applies when there is a \"writing that represents the entire contract between the parties,\" i.e., an integrated agreement. Id. at 497, 854 A.2d 425 (citing Gianni, 281 Pa. at 323, 126 A. 791 ). The court explained that, [t]o determine whether or not a writing is the parties' entire contract, the writing must be looked at and \"if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties'] engagement, it is conclusively presumed that [the writing represents] the whole engagement of the parties....\" An integration clause which states that a writing is meant to represent the parties' entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties' negotiations, conversations, and agreements made prior to its execution. Id. at 497-98, 854 A.2d 425 (citations omitted). Thus, if a court finds that the agreement in question is the parties' entire contract, \"the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract\" is inadmissible to explain or vary the terms of the contract, unless: (1) a term is ambiguous and parol evidence is offered to explain or clarify the ambiguity; or (2) a term was omitted from the contract because of fraud, accident, or mistake. Id. at 498, 854 A.2d 425. As to the second category, the Yocca court emphasized a distinction in the application of the parol evidence rule between claims" }, { "docid": "22968404", "title": "", "text": "they are within its scope. (3) An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement. But an integrated agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated. Id.; see W. Jaeger, Williston on Contracts § 631, at 951-53 (3d ed. 1961). “The parol evidence rule is a matter of substantive law.” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 662 (3d Cir.1990) (citing Betz Lab., Inc. v. Hines, 647 F.2d 402, 405 (3d Cir.1981)); see also Fr. Winkler KG v. Stoller, 839 F.2d 1002, 1005 (3d Cir.1988) (“Despite its title, the rule is one of substantive contract law, and not one of evidence.” (citation omitted)). Since the substantive law of Pennsylvania governs this diversity case, we apply Pennsylvania’s version of the parol evidence rule. The leading Pennsylvania case on the parol evidence rule is Gianni v. R. Russel & Co., 281 Pa. 320, 126 A. 791 (1924). There, the Supreme Court of Pennsylvania wrote: Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at, and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. Id. 126" }, { "docid": "6013936", "title": "", "text": "him prior to the execution of the Employment Agreement. Steinke places particular emphasis on the fact that SFS, in response in part to his concerns about the termination provision in the Employment Agreement, indicated that “everybody signs it. It’s not an issue.” “Whether a writing is an integrated agreement, and if so, whether the agreement is completely or partially integrated are questions to be decided by the court prior to application of the parol evidence rule.” Greenberg v. Tomlin, 816 F.Supp. 1039, 1053 (E.D.Pa.1993); see Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 995 (3d Cir.1987). In determining whether an agreement is integrated, a court must compare both the alleged oral and written agreements and must determine whether “‘the parties, situated as were the ones to the contract, would naturally and normally include the one in the other if it were made.’ ” Mellon Bank Corp. v. First Union Real Estate Equity & Mortgage Invs., 951 F.2d 1399, 1405 (3d Cir.1991) (quoting Gianni v. R. Russel & Co., 281 Pa. 320, 126 A. 791, 792 (Pa.1924)); see Crompton-Richmond Co.—Factors v. Smith, 253 F.Supp. 980, 983 (E.D.Pa.1966), aff'd, 392 F.2d 577 (3d Cir.1967) (per curiam). If the alleged oral and written agreements “ ‘relate to the same subject matter and are so interrelated that both would be executed at the same time and in the same contract, the seope of the subsidiary agreement must be taken to be covered by the writing.’ ” Ralph Chapek, 828 F.2d at 995 (quoting Gianni, 126 A. at 792). In such case, “ ‘parol evidence to vary, modify or supersede the written contract is inadmissible in evidence.’” HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 652 A.2d 1278, 1279 (1995) (quoting Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20, 22 (1968)). Having compared the alleged oral agreement and the written agreement in this case, we believe that Steinke and SFS would “naturally and normally” have included the alleged oral agreement in the written agreement had they actually made an agreement establishing three years as Steinke’s term of employment. A provision" }, { "docid": "16058825", "title": "", "text": "the parties’ rights and responsibilities based upon the presence or absence of “Rum Jungle” and “English is Italian.” Specifically, the clause allows for reduced rent if “at least five (5) of the seven (7) additional restaurants at the Center (to be occupied by Sonsie, Phillips Seafood, ‘English is Italian,’ Game On, Dubliner, ‘Rum-Jungle’ and one additional restaurateur or by other restaurants of comparable quality)” are not open for business by the opening of the Starr restaurants. Because of this language in the Co-tenancy Clause, the written contract directly relates to the subject matter of the prior representation, the “same subject matter” requirement is satisfied. Second, turning to the integration requirement, Starr Plaintiffs argue that the Amended Leases do not constitute fully integrated contracts. In contrast, Defendants argue that the Amended Leases are fully integrated contracts by operation of incorporation of the integration clauses contained in the original Leases. To determine whether or not a writing is the parties’ entire contract, the court determines “if [the writing] appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties’] engagement ...” Yocca, 854 A.2d at 436. An integration clause which states that a writing is meant to represent the parties’ entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties’ negotiations, conversations, and agreements made prior to its execution. Id. Here, the original Starr Leases contained an integration clause; the Amended Leases did not repeat the integration clause. However, the Amended Leases incorporated all unchanged provisions of the original Leases, and the original integration clauses were unchanged. The Pennsylvania Supreme Court has not addressed whether an incorporation clause in an amended lease, which purports to incorporate all the terms of the original lease, unless otherwise modified by the amended lease, has the effect of applying the integration clause contained in the original lease as of the time of the execution of the amended lease. Various appellate level courts have spoken" }, { "docid": "2882516", "title": "", "text": "declares the writing to be not only the best, but the only, evidence of their agreement____ All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract____’” Scott v. Bryn Mawr, 454 Pa. 304, 312 A.2d 592, 594 (1973) (quoting Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924) (citations omitted)). The purpose of the rule is to “preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations.” Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120-21, 262 A.2d 851, 853 (1970); see also Crompton-Richmond Co., Inc. — Factors v. Smith, 253 F.Supp. 980 (E.D.Pa.1966), aff'd, 392 F.2d 577 (3d Cir.1967). The parol evidence rule applies if the writing represents the entire agreement between the parties. Both Chapek and Hershey agree that the October 30, 1981 letter was written by Chapek, received by Hershey, and acted upon in accordance with its terms by both parties. Our task is to determine whether that letter is the final and complete expression of the parties’ agreement. This determination is a matter of law to be decided by the court rather than a jury. See Seidman v. American Express, 523 F.Supp. 1107, 1109 (E.D.Pa.1981); Walker v. Saricks, 360 Pa. 594, 63 A.2d 9, 11 (1949). Crompton-Richmond, 253 F.Supp. 980 (E.D.Pa.1966), aff'd, 392 F.2d 577 (3d Cir.1977), detailed the manner in which that determination is to be made by explaining: That determination must be made by examining the writing and comparing it with the alleged oral agreement. If the writing and the oral agreement relate to the same subject matter and if the court concludes that the parties, situated as were the contracting parties, would normally have included both in one agreement, then the subject of the alleged oral agreement must be considered as having been covered by the writing. Id. at 983. In Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924), a Pennsylvania Supreme Court case cited in Crompton," }, { "docid": "22385579", "title": "", "text": "written contract that may be in conflict with the clearly expressed language of the written agreement. National Cash Register Co. v. Modern Transfer Co., Inc., 224 Pa.Super. 138, 142, 302 A.2d 486, 488 (1973). A court is not authorized to construe a contract in such a way as to modify the plain meaning of its words, under the guise of interpretation. Best v. Realty Management Corp., 174 Pa. Super. 326, 329-330, 101 A.2d 438, 440 (1953). When a written contract is clear and unequivocal, its meaning must be determined by its contents alone. East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 230, 205 A.2d 865, 866 (1965). The rule enunciated in Gianni v. Russell & Co., Inc., [281 Pa. 320, 126 A. 791] supra, is firmly embedded in the law of Pennsylvania and from that rule we will not permit a deviation for it is essential that the integrity of written contracts be maintained. . . . ‘Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement: [citing cases]. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract * * * and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence: [citing cases].’ United Refining Co. v. Jenkins, 410 Pa. 126, 134, 189 A.2d 574, 578 (1963) (emphasis and citations omitted). In a world where semantics is a science instead of an art we might be able to read a contract and understand it without question. However, English is often a difficult and elusive language, and certainly not uniform among all who use it. External indi-cia of the parties’ intent other than written words are useful, and probably indispensable, in interpreting contract terms. If each judge simply applied his own linguistic background and experience to the words of a contract, contracting parties would live in a most uncertain environment." }, { "docid": "19421208", "title": "", "text": "seats would be located. 578 Pa. at 490, 854 A.2d 425. The plaintiffs further alleged that the Steelers violated the Unfair Trade Practices and Consumer Protection Law (\"UTPCPL\"). The trial court dismissed the complaint, finding that the season ticket agreement entered into by the Steelers and the plaintiffs was a fully integrated agreement that represented all of the terms of the parties' agreement, thereby \"supersed[ing] all of parties' previous negotiations and agreements.\" Id. at 492, 854 A.2d 425. As a result, because the plaintiffs' claims for fraud and negligent misrepresentation \"were directly based on the parties' contractual agreement, they could only be brought as part of [the plaintiffs'] breach of contract claims rather than as separate tort claims.\" Id. The Commonwealth Court affirmed the trial court's dismissal of the plaintiffs' fraud and negligent misrepresentation claims because they were based primarily on the parties' contract. See Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. 2002). However, the Commonwealth Court reversed the trial court's dismissal of the plaintiffs' claim for breach of contract, finding that the brochure in question constituted part of the parties' final agreement. Id. at 942. The Pennsylvania Supreme Court held that the Commonwealth Court had improperly reversed the trial court's order dismissing plaintiffs' \"breach of contract claims because the parol evidence rule bars any consideration of [the plaintiffs'] claims, which are wholly based on the terms in the [ ] Brochure.\" 578 Pa. at 496-97, 854 A.2d 425. The Pennsylvania Supreme Court explained that, as a threshold matter, the parol evidence rule applies when there is a \"writing that represents the entire contract between the parties,\" i.e., an integrated agreement. Id. at 497, 854 A.2d 425 (citing Gianni, 281 Pa. at 323, 126 A. 791 ). The court explained that, [t]o determine whether or not a writing is the parties' entire contract, the writing must be looked at and \"if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties'] engagement, it is" }, { "docid": "12777766", "title": "", "text": "of the agreement is to be determined by examining the writing itself, and if “it is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking were reduced to writing.” Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791, 792 (1924). Thus, the question of integration is one for the court to decide by reference to the four corners of the agreement. Federal Deposit Ins. Co. v. Barness, 484 F.Supp. 1134, 1146 (W.D.Pa.1980). See also Mellon Bank, N.A. v. Aetna Business Credit, 619 F.2d 1001, 1010 n. 9 (3d Cir.1980). The agreement in the instant case was reduced to three separate, formal agreements which identified the property involved, the purchase price and the terms of repayment. Accordingly, we find that the writings were integrated and that therefore, the parol evidence rule is applicable. Mellon attempts to avoid the consequences of the parol evidence rule by arguing that the instant case falls within two well recognized exceptions to that rule. Mellon first claims that the oral agreement was somehow separate and distinct from the written agreement, thereby making the parol evidence rule inapplicable. Next, Mellon contends that it was induced to agree to the written provisions of the note by Schofield’s fraudulent misrepresentations regarding his intent to honor the prepayment provisions of the mortgage notes. Both of these contentions are without merit. A. The Separate Agreement Theory It is well recognized that the parol evidence rule does not bar evidence of oral agreements that are separate from the written agreement. See Wood v. R.R. Donnelley & Sons, 888 F.2d 313 (3d Cir.1989). An oral agreement, however, is not considered a separate agreement unless it concerns a separate subject and is supported by independent consideration. See Wood v. R.R. Donnelley & Sons, 888 F.2d at 317-18; Cohn v. McGurk, 330 Pa.Super. 333, 479 A.2d 578 (1984), Kravitz v. Mudry, 200 Pa.Super. 240, 189 A.2d 311 (1963). The facts of" }, { "docid": "22968405", "title": "", "text": "There, the Supreme Court of Pennsylvania wrote: Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at, and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. Id. 126 A. at 792 (internal quotations and citations omitted). Pennsylvania courts still rely upon Gianni’s definitive statement of Pennsylvania’s parol evidence rule. See In re Estate of Hall, 517 Pa. 115, 535 A.2d 47, 55 n. 5 (1987); Fountain Hill Millwork Bldg. Supply Co. v. Belzel, 402 Pa.Super. 553, 587 A.2d 757, 760 (1991). 1. The parol evidence rule is not applicable if the parties did not intend a written contract to set forth their full agreement. See Gianni, 126 A. at 792; see also American Bank & Trust Co. v. Lied, 487 Pa. 333, 409 A.2d 377, 381 (1979) (parol evidence forbidden “for the purpose of varying or contradicting the terms of a contract which both parties intended to represent the definite and complete statement of their agreement”); Fountain Hill, 587 A.2d at 761 (“[i]t is clear that the parol evidence rule has no application to a writing that does not state fully the agreement among the parties.”). The proper legal undertaking in determining whether a written agreement is the final and complete expression of" }, { "docid": "14387691", "title": "", "text": "above matters been properly and fairly disclosed to us I would have never gotten involved with Mr. Hassam and I would have never borrowed] against my home to be involved with an operation that was never going to be from the start. (Doc. No. 78 ¶¶ 177, 48). The defendants summarily deny that Mr. Hassam ever made any material fraudulent misrepresentations which induced Mr. Rahemtulla to enter into the Partnership. (Doc. No. 86 p. 18). The defendants also rely upon the fact that the Partnership Agreement contains an integration clause. Id. p. 19. Because there is an integration clause, the defendants argue, the parol evidence rule precludes the plaintiffs from introducing any evidence that Mr. Rahemtulla was fraudulently induced into entering the Partnership, and thus the claim for fraud is barred. Id. pp. 19-22. With respect to their motion to dismiss, the defendants argue that all of the plaintiffs’ tort claims, including fraud, fundamentally sound in contract, not in tort, and under Pennsylvania’s “gist of the action” doctrine, tort claims cannot be maintained when they essentially duplicate an action for breach of the underlying contract. Id. pp. 27-28; (Doc. No. 65). It has long been held that the parol evidence rule bars evidence of prior representations in a fully integrated written agreement. Haymond v. Lundy 2000 WL 804432, at *6-7 (E.D.Pa. June 22, 2000); Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 661 (1982); Gianni v. Russell & Co., Inc., 281 Pa. 320, 126 A. 791, 792 (1924); Union Storage Co. v. Speck, 194 Pa. 126, 45 A. 48, 49 (1899); Hart v. Arnold, 884 A.2d 316, 339-41 (Pa.Super.Ct.2005). Where a written contract contains an integration clause, “the law declares the writing to not only be the best, but the only evidence of [the parties’] agreement.” Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 436 (2004). The purpose of an integration clause is to give effect to the parol evidence rule: “Thus, the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and" }, { "docid": "2882515", "title": "", "text": "deed given by C to B by parol evidence concerning the one-third/two-thirds division of the property. Thus, in Potoczny, supra, the oral agreement (between A and B) was found to be the type of agreement “... as might naturally be made separately by parties situated as were the parties to the written agreement.” Id. at 558,162 A.2d 70. That situation is significantly different from the situation found here where Chapek seeks to alter the terms of its written agreement with Hershey by adding still another term of compensation allegedly agreed upon pri- or to the parties’ October 30th written agreement. See discussion infra at 998. Moreover, the parol evidence rule under Pennsylvania law provides that when parties to a contract have reduced their agreement to writing, that writing will be the sole evidence of their agreement, and parol evidence may not be admitted to vary the terms of the contract in the absence of fraud, accident or mistake. “ ‘Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement____ All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract____’” Scott v. Bryn Mawr, 454 Pa. 304, 312 A.2d 592, 594 (1973) (quoting Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924) (citations omitted)). The purpose of the rule is to “preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations.” Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120-21, 262 A.2d 851, 853 (1970); see also Crompton-Richmond Co., Inc. — Factors v. Smith, 253 F.Supp. 980 (E.D.Pa.1966), aff'd, 392 F.2d 577 (3d Cir.1967). The parol evidence rule applies if the writing represents the entire agreement between the parties. Both Chapek and Hershey agree that the October 30, 1981 letter was written by Chapek, received by Hershey, and acted upon in accordance with its terms by both parties." }, { "docid": "5091929", "title": "", "text": "legal effect. Since the Wells concede that they failed to make the additional $2,000 deposit, the agreement of sale expired, and the government is correct that I should conclude that title rests with the Midgleys. Two legal barriers stand between the Wells and their claim to title. First, there is the parol evidence rule, which precludes the introduction of oral testimony which varies or contradicts the terms of a written contract. Globe Motors, Inc. v. Studebaker-Packard Corp., 328 F.2d 645 (3d Cir. 1964); Walker v. Saricks, 360 Pa. 594, 63 A. 9 (1949). Here, the Wells’ burden in overcoming the rule is particularly heavy, because the contract itself provides that “[a]ny changes or additions to this Agreement must be made in writing and executed by the parties hereto.” The Wells rely on the principle that subsequent modifications of a written instrument do not fall within the parol evidence rule, Pellegrene v. Luther, 403 Pa. 212, 169 A.2d 298 (1961), and that even a clause prohibiting oral modification may itself be altered by subsequent agreements. Encyclopaedia Britannica, Inc. v. Cowan, 142 Pa.Super. 534, 16 A.2d 433 (1940). In order to prevail on this theory, the Wells would have to establish that the subsequent oral modifications were based upon a valid consideration, (which they have not alleged), and would have to prove the terms of the modification by clear and convincing evidence. Pellegrene v. Luther, 403 Pa. at 215, 169 A.2d 298. Even assuming that they could do so, however, it would be to no avail, for by successfully introducing parol evidence, the Wells would find themselves barred by the second obstacle which confronts them, the Statute of Frauds. Under the Pennsylvania Statute of Frauds a contract for the sale of land must be in writing. 33 Pa.Stat.Ann. § 1 et seq. When a contract is required by the Statute of Frauds to be in writing, its terms cannot be orally modified. Brown, to use, v. Aiken, 329 Pa. 566, 580, 198 A. 441 (1938). When oral testimony is admitted to modify a contract otherwise within the Statute of Frauds, the legal" }, { "docid": "14387692", "title": "", "text": "essentially duplicate an action for breach of the underlying contract. Id. pp. 27-28; (Doc. No. 65). It has long been held that the parol evidence rule bars evidence of prior representations in a fully integrated written agreement. Haymond v. Lundy 2000 WL 804432, at *6-7 (E.D.Pa. June 22, 2000); Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 661 (1982); Gianni v. Russell & Co., Inc., 281 Pa. 320, 126 A. 791, 792 (1924); Union Storage Co. v. Speck, 194 Pa. 126, 45 A. 48, 49 (1899); Hart v. Arnold, 884 A.2d 316, 339-41 (Pa.Super.Ct.2005). Where a written contract contains an integration clause, “the law declares the writing to not only be the best, but the only evidence of [the parties’] agreement.” Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 436 (2004). The purpose of an integration clause is to give effect to the parol evidence rule: “Thus, the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.” Hart, 884 A.2d at 341 (quoting 1726 Cherry St. v. Bell Atlantic, 439 Pa.Super. 141, 653 A.2d 663, 665 (Pa.Super.Ct.1995)). Therefore, where a party claims fraud in the inducement and the written contract is fully integrated, the parol evidence rule works to bar evidence of any representations made about any matter covered by the agreement prior to the contract’s execution. Id. However, in a situation commonly referred to as fraud in the execution, where the party proffering the evidence contends that certain terms were supposed to be included in the contract, but were omitted because of fraud, accident, or mistake, then parol evidence is admissible. Id. The Supreme Court of Pennsylvania has concisely stated this rule of law: [W]hile parol evidence may be introduced based on a party’s claim that there was fraud in the execution of a contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be" } ]

[ { "docid": "6176132", "title": "", "text": "v. Bell, - U.S. -, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). As a consequence, there is no need for us to make an independent examination of the cases and legislative history for it has now been definitively determined that Title IX does reach discrimination in educational employment. Since the district court incorrectly concluded that the employment discrimination regulations (subpart E) were void, so much of the district court’s order which declared the Assurance of Compliance form invalid and which enjoined the Department from requiring Grove to sign the Assurance of Compliance is in error, and must be reversed. B. In addition to declaring the Assurance of Compliance form invalid, the district court’s order also enjoined the Department from terminating the payment of monies under the BEOG program until the Department proved that Grove was actually engaged in gender discrimination. The district court concluded that § 902 of the Act, 20 U.S.C. § 1682, did not authorize the Department to terminate federal financial assistance just because an institution has refused to execute an Assurance of Compliance. Section 902 of the Act provides the Department with the authority to enforce Title IX’s ban against gender discrimination. By its very terms, section 902 authorizes the Department to terminate federal financial assistance in order to secure compliance with any regulatory requirement designed to effectuate the objectives of Title IX. Accordingly, the Department provided that, as a condition of approval of federal financial assistance, an assurance from a recipient that it would not discriminate is required. Moreover, by regulation the Department was to specify the form that assurance would take. 34 C.F.R. § 106.4(c). The form prescribed did little more than identify the type of institution applying for federal funds. (A. 18). It required minimal information respecting grievance procedures in the event of complaints, and a statement of self-evaluation concerning the practices of the institution. Primarily it committed the recipient of funds to comply with Title IX and its regulations. As such it constituted a threshold device facilitating the enforcement of Title IX’s objectives. Thus, the assurance regulations, when read in conjunction with section" } ]

[ { "docid": "22080418", "title": "", "text": "Justice White delivered the opinion of the Court. Section 901(a) of Title IX of the Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 373, 20 U. S. C. § 1681(a), prohibits sex discrimination in “any education program or activity receiving Federal financial assistance,” and §902 directs agencies awarding most types of assistance to promulgate regulations to ensure that recipients adhere to that prohibition. Compliance with departmental regulations may be secured by termination of assistance “to the particular program, or part thereof, in which . . . noncompliance has been . . . found” or by “any other means authorized by law.” §902, 20 U. S. C. § 1682. This case presents several questions concerning the scope and operation of these provisions and the regulations established by the Department of Education. We must decide, first, whether Title IX applies at all to Grove City College, which accepts no direct assistance but enrolls students who receive federal grants that must be used for educational purposes. If so, we must identify the “education program or activity” at Grove City that is “receiving Federal financial assistance” and determine whether federal assistance to that program may be terminated solely because the College violates the Department’s regulations by refusing to execute an Assurance of Compliance with Title IX. Finally, we must consider whether the application of Title IX to Grove City infringes the First Amendment rights of the College or its students. I — 1 Petitioner Grove City College is a private, coeducational, liberal arts college that has sought to preserve its institutional autonomy by consistently refusing state and federal financial assistance. Grove City’s desire to avoid federal oversight has led it to decline to participate, not only in direct institutional aid programs, but also in federal student assistance programs under which the College would be required to assess students’ eligibility and to determine the amounts of loans, work-study funds, or grants they should receive. Grove City has, however, enrolled a large number of students who receive Basic Educational Opportunity Grants (BEOG’s), 20 U. S. C. § 1070a (1982 ed.), under the Department of Education’s" }, { "docid": "10354290", "title": "", "text": "financial assistance in the form of contracts of insurance or guaranty from the enforcement authority of HEW. The regulations, under Section 106.4(a), further provide that each “recipient” of “federal financial assistance,” as defined above, must submit to HEW an “Assurance of Compliance” with Title IX, stating that each education program or activity operated by the institution to which the regulations apply will be conducted in compliance with Title IX and the regulations. Because Hillsdale College refused to execute such an Assurance of Compliance, HEW instituted these proceedings. Hills-dale’s basic arguments as to why the order cutting off funds is invalid are as follows. First, it argues that, because it does not operate any “education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a) (1976), it is not a “recipient” of such assistance within the meaning of Title IX and therefore, contrary to the regulations, is not covered by Title IX at all. Stated slightly differently, Hillsdale contends that the receipt by its students of federal financial assistance does not make it, the institution, a “recipient” under Title IX. Second, Hillsdale argues that the federal loans and grants cannot be terminated because of its failure to sign an Assurance of Compliance with Title IX regulations since enforcement under Title IX is “program-specific” and it can be required to assure compliance only as to programs actually receiving federal assistance. Implicit in this argument is the proposition that it is, at the most, subject to regulation under Title IX only as to its administration of the student loan and grant programs. While recognizing that under the Assurance the recipient agrees only to comply with the regulations to the extent applicable to it, Hillsdale points out that it is HEW’s very theory that the entire institution is subject to such regulation. Third, Hillsdale argues that termination of federal assistance, under the statute, cannot in any event be done unless there has been a showing of actual sex discrimination in the program receiving federal assistance. A. The ALJ Decision The matter was referred to an Administrative Law Judge (“ALJ”) upon a joint stipulation" }, { "docid": "1223493", "title": "", "text": "educational institutions that receive federal financial assistance in any form. Congress was well aware of this interpretation at the time that it enacted Title IX. Cannon, 441 U.S. at 696-97, 99 S.Ct. at 1957-58. See also 118 Cong.Rec. 18437 (1972) (“Since 1964, there has been ample opportunity to establish enforcement procedure with respect to [Title VI]; enforcement of [Title IX] will draw heavily on these precedents.”) (remarks of Sen. Bayh). In Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.1974), aff’d mem., 529 F.2d 514 (4th Cir. 1975), the court held that the defendant university was a recipient subject to Title VI coverage where the only federal financial assistance to the university was veterans’ educational benefits paid to some students. The court noted that the VA benefits defrayed the costs of the university’s education program and enlarged its pool of qualified applicants. “Grant programs frequently use institutions as conduits through which federal funds or other assistance pass to the ultimate beneficiaries. Clearly, Title VI attaches to a recipient acting in that capacity.” Id. at 603. See also Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir.) (school board’s acceptance of federal money for operating expenses subjects entire school system to requirements of Title VI), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967); United States v. Jefferson County Board of Education, 372 F.2d 836, 850 (“Title VI requires all federal agencies administering any grant-in-aid program to see to it that there is no racial discrimination by any school or other recipient of federal financial aid.”), aff’d en banc, 380 F.2d 385 (5th Cir. 1966), cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967); Flanagan v. President And Directors of Georgetown College, 417 F.Supp. 377 (D.D.C.1976) (program-specific approach in section 2000d-l relates to funding termination efforts of federal agencies and is not a restriction on the types of discrimination outlawed by Title VI; Title VI applies to any services provided in a facility built with federal financial assistance); Bob Jones University, 396 F.Supp. at 603 n.22 (“Although the VA payments are not earmarked" }, { "docid": "22080436", "title": "", "text": "512 (1982), “conform with the limitations Congress enacted in §§901 and 902.” Id., at 539. Nor does the Department now claim that its regulations reach beyond the College’s student aid program. Furthermore, the Assurance of Compliance currently in use, like the one Grove City refused to execute, does not on its face purport to reach the entire College; it certifies compliance with respect to those “education programs and activities receiving Federal financial assistance.” See n. 2, supra. Under this opinion, consistent with the program-specific requirements of Title IX, the covered education program is the College’s financial aid program. A refusal to execute a proper program-specific Assurance of Compliance warrants termination of federal assistance to the student financial aid program. The College’s contention that termination must be preceded by a finding of actual discrimination finds no support in the language of § 902, which plainly authorizes that sanction to effect “[c]ompliance with any requirement adopted pursuant to this section.” Regulations authorizing termination of assistance for refusal to execute an Assurance of Compliance with Title VI had been promulgated, 45 CFR §80.4 (Supp., Jan. 1, 1965), and upheld, Gardner v. Alabama, 385 F. 2d 804 (CA5 1967), cert. denied, 389 U. S. 1046 (1968), long before Title IX was enacted, and Congress no doubt anticipated that similar regulations would be developed to implement Title IX. 118 Cong. Rec. 5807 (1972) (Sen. Bayh). We conclude, therefore, that the Department may properly condition federal financial assistance on the recipient’s assurance that it will conduct the aided program or activity in accordance with Title IX and the applicable regulations. V Grove City’s final challenge to the Court of Appeals’ decision — that conditioning federal assistance on compliance with Title IX infringes First Amendment rights of the College and its students — warrants only brief consideration. Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept. E. g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). Grove City may terminate its participation in the BEOG program and thus avoid the" }, { "docid": "10354297", "title": "", "text": "for federal financial assistance to its students. Under the facts presented, two major issues are before this court: (1) whether the regulations, by deeming Hills-dale College to be a “recipient” of federal financial assistance subject to Title IX by virtue of the receipt of its students of federal grants and loans, exceed the statutory authority granted HEW by Congress, and (2) whether HEW in any event can insist on the execution of the Assurance of Compliance as a condition precedent for the continuation of federal student assistance programs at Hillsdale College. We determine that Hillsdale is a “recipient” within the meaning of Title IX but that the regulations are invalid to the extent that they purport to subject Hillsdale College as an institution to the strictures of Title IX. Specifically, we conclude that the regulations, as applied in this instance, contravene the program-specific nature of Title IX by equating the statutory phrase “education program and activity” with the educational institution itself. We reach this conclusion after examining the statutory language of Title IX, its legislative history, and the relevant case law. III. Statutory Language of Title IX The two core provisions of Title IX, Sections 901 and 902, both contain express references to the program-specific focus of the statute. As noted by the Supreme Court in North Haven, Section 901 sets forth the statute’s program-specific prohibition of gender discrimination, while Section 902 relates to enforcement, providing for termination of federal funds or denial of future grants as the ultimate sanction for noncompliance so long as the termination or refusal “is limited in its effect to the particular program, or part thereof, in which noncompliance has been so found.... ” 20 U.S.C. § 1682 (1976). See North Haven, 456 U.S. at 514, 102 S.Ct. at 1914, 72 L.Ed.2d at 304. The Court in North Haven relied on the existence of program-specific language in both the funding termination provision of Section 902 and the portion of Section 902 authorizing the issuance of implementing regulations to reject the implicit view of the lower court that HEW’s authority to issue regulations is broader than" }, { "docid": "6176096", "title": "", "text": "(emphasis added). Under section 902, each agency awarding federal financial assistance “other than a contract of insurance or guaranty” to any education program or activity is authorized to promulgate regulations to insure compliance with section 901(a). If compliance cannot be secured by voluntary means, section 902 authorizes the termination of federal funds to the program in which noncompliance is found. 20 U.S.C. § 1682. The Department of Education is the primary administrator of federal financial assistance to education. Pursuant to its regulations, 34 C.F.R. § 106.4(a), the Department réquires each recipient of federal aid to file an Assurance of Compliance as a means of securing adherence to Title IX. Under the Assurance in use at the time of this case was filed, the recipient agreed that it would [cjomply, to the extent applicable to it, with Title IX . . . and all requirements imposed by . . . the Department’s regulation . .. the end that, in accordance with Title IX ... no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any education programs or activity for which the Applicant receives or benefits from federal financial assistance. . . . In addition, recipients provided basic information about their programs, including a “self-evaluation” under Title IX (A. 18). B. Grove City College (Grove) is a private co-educational institution of higher education affiliated with the United Presbyterian Church and located in Grove City, Pennsylvania. Approximately 2,200 students attend Grove (A. 33). One hundred forty of Grove’s students are eligible to receive Basic Educational Opportunity Grants (BEOGs) appropriated by Congress and allocated by the Department pursuant to 20 U.S.C. § 1070a. Three hundred forty-two of Grove’s current students have obtained Guaranteed Student Loans (GSLs). Other than through the BEOG or GSL programs, Grove receives no federal or state financial assistance. BEOGs are paid by the Department directly to the eligible students attending Grove. Grove, however, executes the institutional section to the students’ BEOG applications and certifies data involving the student applicants’ costs and" }, { "docid": "10354343", "title": "", "text": "to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law.... . 42 U.S.C. § 2000d et seq. (1976). Sections 602 and 603 of Title VI are absolutely identical to sections 902 and 903 of Title IX; section 601 is almost identical except that it prohibits discrimination based on “race, color or national origin” whereas section 901 prohibits discrimination based on sex, and section 901 is limited to “any education program or activity” whereas section 601 covers “any program or activity” (emphasis added). . See note 3 supra. The Assurance of Compliance, HEW asserts, is critical to its effective enforcement of Title IX insofar as it provides a means of monitoring the threshold compliance with the statute by the large number of universities, colleges, schools, and other institutions covered by Title IX. A similar regulatory scheme is employed by the various agencies in charge of enforcing Title VI. See, e.g., 38 C.F.R. § 18.4 (1981) (assurance of compliance required as a condition of receipt of federal financial assistance from the Veterans Administration). . Hillsdale also contends that if Title" }, { "docid": "23661926", "title": "", "text": "particularly in terms of athletics, might come within the scope of the discrimination provision, and, relatedly, how the government would determine compliance. The gridiron fueled these concerns: for many schools, the men’s football budget far exceeded that of any other sport, and men’s athletics as a whole received the lion’s share of dedicated resources — a share that, typically, was vastly disproportionate to the percentage of men in the student body. Part of the confusion about the scope of Title IX’s coverage and the acceptable avenues of compliance arose from the absence of secondary legislative materials. Congress included no committee report with the final bill and there were apparently only two mentions of intercollegiate athletics during the congressional debate. See 118 Cong.Rec. 5,807 (1972) (statement of Sen. Bayh on privacy in athletic facilities); 117 Cong.Rec. 30,407 (1971) (statement of Sen. Bayh noting that proposed Title IX will not require gender-blended football teams). Nevertheless, under congressional direction to implement Title IX, the Secretary of Health, Education and Welfare (HEW) promulgated regulations in 1975 which included specific provisions for college athletics. Four years later, HEW’s Office of Civil Rights (OCR) added another layer of regulatory exegesis when, after notice and comment, it published a “Policy Interpretation” that offered a more de tailed measure of equal athletic opportunity- In 1984, the Supreme Court radically altered the contemporary reading of Title IX. The Court held that Title IX was “program-specific,” so that its tenets applied only to the program(s) which actually received federal funds and not to the rest of the university. Grove City College v. Bell, 465 U.S. 555, 574, 104 S.Ct. 1211, 1221, 79 L.Ed.2d 516 (1984). Because few athletic departments are direct recipients of federal funds — most federal money for universities is channelled through financial aid offices or invested directly in research grants— Grove City cabined Title IX and placed virtually all collegiate athletic programs beyond its reach. In response to Grove City, Congress scrapped the program-specific approach and reinstated an institution-wide application of Title IX by passing the Civil Rights Restoration Act of 1987, 20 U.S.C. § 1687 (1988)." }, { "docid": "10354314", "title": "", "text": "financial assistance. 687 F.2d at 705. Thus Judge Becker concludes that the regulation requiring the Assurance is valid because the Assurance is limited to programs receiving benefits from the federal government. The difficulty with Judge Becker’s view is that it is HEW’s very position, that the entire college is a program and that by executing the Assurance, the college agrees to comply with regulations as they apply to the entire institution. Simply stated, it appears to us that it would be anomalous to hold that the college may be required to execute the Assurance because it is so limited by its terms when HEW construes the Assurance and its regulations to apply to the college as an institution, a position that is, in our view, not supportable under Title IX. VI. CONCLUSION We agree with Hillsdale in part and HEW in part. 1. We agree with HEW that funds may be cut off without a finding that a college is actually discriminating on the basis of sex. Section 902 authorizes HEW to issue regulations to effectuate section 901 and further provides that compliance with the regulations may be enforced by cutting off of federal funds. The statute does not provide that funds may be cut off only upon a finding of actual discrimination. 2. We further agree with HEW that Hillsdale is a “recipient” within the meaning of section 901 and that, provided that the “program-specific” limitation in Title IX is met, it is subject to regulation. 3. We agree with Hillsdale’s alternative contention that the entire college, as an institution, is not a “program” within the meaning of Title IX and that the “program” involved here is the student loan and grant program. Thus we agree that only the student loan and grant program is subject to Title IX regulation. <4. We agree with Hillsdale that the regulation requiring it to execute the Assurance of Compliance as a condition for its students receiving loans and grants is, as it is applied here, an invalid regulation. This is true because the regulation and the Assurance, as interpreted and applied by" }, { "docid": "22791995", "title": "", "text": "notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis. See Restatement §280. Petitioners focus primarily on Lago Vista’s asserted failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims. They point to Department of Education regulations requiring each funding recipient to “adopt and publish grievance procedures providing for prompt and equitable resolution” of discrimination complaints, 34 CFR § 106.8(b) (1997), and to notify students and others that “it does not discriminate on the basis of sex in the educational programs or activities which it operates,” § 106.9(a). Lago Vista’s alleged failure to comply with the regulations, however, does not establish the requisite actual notice and deliberate indifference. And in any event, the failure to promulgate a grievance procedure does not itself constitute “discrimination” under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, 20 U. S. C. § 1682, even if those requirements do not purport to represent a definition of discrimination under the statute. E. g., Grove City, 465 U. S., at 574-575 (permitting administrative enforcement of regulation requiring college to execute an “Assurance of Compliance” with Title IX). We have never held, however, that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements. V The number of reported cases involving sexual harassment of students in schools confirms that harassment unfortunately is an all too common aspect of the educational experience. No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher’s conduct is reprehensible and undermines the basic purposes of the educational system. The issue in this ease, however, is whether the independent misconduct of a teacher is attributable to the school district that employs him under a specific federal statute designed primarily to prevent recipients of federal financial assistance from using the funds in a discriminatory manner. Our decision does not affect any" }, { "docid": "10354289", "title": "", "text": "Amendments of 1972....” 34 C.F.R. § 106.1 (1981). The portions of the regulations at issue in this case deal with the definitions of “recipient” and “federal financial assistance.” Section 106.2(g)(l)(ii) defines “federal financial assistance” to include: Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity. The term “recipient” is defined in the regulations to mean: [A]ny State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof. 34 C.F.R. § 106.2(h) (1981) (emphasis added). An exception to this definition is found in 34 C.F.R. § 106.2(g)(5) (1981) which, in accordance with Section 902 of Title IX, exempts financial assistance in the form of contracts of insurance or guaranty from the enforcement authority of HEW. The regulations, under Section 106.4(a), further provide that each “recipient” of “federal financial assistance,” as defined above, must submit to HEW an “Assurance of Compliance” with Title IX, stating that each education program or activity operated by the institution to which the regulations apply will be conducted in compliance with Title IX and the regulations. Because Hillsdale College refused to execute such an Assurance of Compliance, HEW instituted these proceedings. Hills-dale’s basic arguments as to why the order cutting off funds is invalid are as follows. First, it argues that, because it does not operate any “education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a) (1976), it is not a “recipient” of such assistance within the meaning of Title IX and therefore, contrary to the regulations, is not covered by Title IX at all. Stated slightly differently, Hillsdale contends that the receipt by its students of federal financial assistance does not make it, the institution," }, { "docid": "10354296", "title": "", "text": "educational institutions are subject to Title IX regulation provided the other statutory requirements are met. North Haven thus removes the underlying basis for the ALJ’s determination that Hillsdale cannot be required to execute the Assurance of Compliance, which was that signing the Assurance would compel the College to abide by the unlawful employment regulations. In the course of upholding the validity of the employment regulations, however, the Court stressed the “program-specific” nature of Title IX, holding that “an agency’s authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of §§ 901 and 902.” Id. 456 U.S. at 538, 102 S.Ct. at 1926, 72 L.Ed.2d at 317-318. The Court, nevertheless, expressly declined to define the term “program.” Id. 456 U.S. at 540, 102 S.Ct. at 1927, 72 L.Ed.2d at 319. II. Issues on Appeal As previously stated, Hillsdale College is presently before this court seeking review of the Order of the HEW Reviewing Authority requiring it to execute the Assurance of Compliance in order to remain eligible for federal financial assistance to its students. Under the facts presented, two major issues are before this court: (1) whether the regulations, by deeming Hills-dale College to be a “recipient” of federal financial assistance subject to Title IX by virtue of the receipt of its students of federal grants and loans, exceed the statutory authority granted HEW by Congress, and (2) whether HEW in any event can insist on the execution of the Assurance of Compliance as a condition precedent for the continuation of federal student assistance programs at Hillsdale College. We determine that Hillsdale is a “recipient” within the meaning of Title IX but that the regulations are invalid to the extent that they purport to subject Hillsdale College as an institution to the strictures of Title IX. Specifically, we conclude that the regulations, as applied in this instance, contravene the program-specific nature of Title IX by equating the statutory phrase “education program and activity” with the educational institution itself. We reach this conclusion after examining the statutory language of Title IX, its legislative" }, { "docid": "18365953", "title": "", "text": "Rights Act of 1964. 42 U.S.C. § 2000d. Pursuant to 45 C.F.R. § 84.61 (1979), the regulations are incorporated by reference and made applicable to the regulations which implement section 504. They are, in essence, an enforcement scheme by which the Secretary of HEW may, upon finding a state in noncompliance with section 504, require compliance with section 504 by either informal means or by the termination of federal funding. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the United States Supreme Court held that a private cause of action may be maintained for violations of Title IX of the Civil Rights Act of 1964. 20 U.S.C. §§ 1681-1686. The Court expressly rejected the contention that individuals must pursue the administrative procedures for the termination of federal funding of institutions in violation of Title IX in lieu of or as a condition precedent to a private cause of action. The court observed: Title IX, like its model Title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices. Both of these purposes were repeatedly identified in the debates on the two statutes. The first purpose is generally served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices. That remedy is, however, severe and often may not provide an appropriate means of accomplishing the second purpose if merely an isolated violation has occurred. In that situation, the violation might be remedied more efficiently by an order requiring an institution to accept an applicant who had been improperly excluded. Moreover, in that kind of situation it makes little sense to impose on an individual, whose only interest is in obtaining a benefit for herself, or on HEW, the burden of demonstrating that an institution’s practices are so pervasively discriminatory that a complete cutoff of federal funding is appropriate. The award of individual relief to a private litigant who has" }, { "docid": "6176161", "title": "", "text": "Cir. 1980), vacated and remanded for further consideration in light of North Haven sub nom. Bell v. Dougherty Cty School System, - U.S. -, 102 S.Ct. 2264, 73 L.Ed.2d 1280 (1982), the Fifth Circuit Court declined to rule that Title IX did not reach employment discrimination in educational institutions, but held that the subpart E regulation was facially invalid on the grounds that its coverage was not program specific — i.e., that the regulation reached employment practices in programs or activities not receiving “federal financial assistance.” . The relevant text of section 902 is reproduced in n. 2 supra. . A counterpart of the instant assurance requirement was promulgated under Title VI at 45 C.F.R. 80.4. See 42 U.S.C. 2000d-l. BECKER, Circuit Judge, concurring in the judgment and in all but Part III of the opinion: I agree with the result reached by the majority. I write separately because of the unnecessary breadth of the majority’s opinion, which effectively decides cases not before this panel but which are or will someday be before this Court. Part III of the majority opinion deals primarily with the question whether construing “federal financial assistance” to in-elude BEOGs is necessarily incompatible with, and mutually exclusive of, the statutory requirement that enforcement of Title IX be “program specific.” The majority answers this question by concluding that when the federal government furnishes indirect or non-earmarked aid to an institution, the institution itself must be the “program” for purposes of Title IX. (Majority op. at 699). That conclusion is unnecessary to the decision of this case. The controversy here does not implicate the application of Title IX to specific programs or activities within Grove’s curriculum. Instead, the essential issue merely concerns Grove’s refusal to execute the Assurance of Compliance. As a result, this case involves only a challenge to the facial validity of the Assurance of Compliance, and we need not pose the question raised by Haffer v. Temple University, 524 F.Supp. 531 (E.D.Pa.1981), appeal pending, No. 82-1049 (3d Cir.), whether a particular program within a university which has executed the Assurance of Compliance may be regulated" }, { "docid": "12640658", "title": "", "text": "coverage of Title IX is limited to a particular entity and program receiving federal financial assistance. See North Haven Board of Education v. Bell, 456 U.S. 512, 535-39, 102 S.Ct. 1912, 1926-27, 72 L.Ed.2d 299, 317-19 (1982). In North Haven, supra, petitioners disputed the department’s authority to regulate any employment practices. The Supreme Court held that employment practices could be regulated if the employees directly participated in federal programs or directly benefited from federal grants, loans, or contracts. The Court, however, declined to define “program” within the meaning of Title IX. Mabry’s argument rests on the inference that, because physical education classes and other classes she taught were part of the core requirements for all persons receiving degrees in the programs that were benefited by federal financial assistance, coverage under Title IX should be extended to this case. In Grove City v. Bell, — U.S.-, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), it was held that Title IX coverage was not foreclosed simply because federal funds are granted to students rather than to the college’s. education programs; but the Court also held that institution wide coverage of Title IX was not triggered because some students at the college received federal financial assistance through Basic Education Opportunity Grants. Id. — U.S. at-, 104 S.Ct. at 1216. Grove City, supra, stands for the proposition that the purpose and effect of the assistance the students received through grants inured to Grove City College’s financial aid program; that it was the financial aid program itself that came within the purview of Title IX. While Grove City was an action that primarily dealt with compliance regulations under Title IX, it is useful here with respect to the statute’s reach. Justice White limited the application of Title IX coverage to the financial aid program only, notwithstanding its obvious interrelationship with the entire educational institution, although the opinion did not touch upon that issue. Defendants have submitted the affidavit of John Tarabino, dean of administration at Trinidad State Junior College. Tarabino held that position at the time relevant to this complaint. He is the chief financial officer" }, { "docid": "6176095", "title": "", "text": "OPINION OF THE COURT GARTH, Circuit Judge. This appeal involves the Department of Education’s authority to enforce Title IX of the Education Amendments of 1972, against a college which receives no direct funds from the federal government, but whose students receive federal grants. The district court granted Grove City College’s motion for summary judgment and refused to permit the termination of Basic Educational Opportunity Grants to students at the College, holding that the Title IX enforcement regulations were invalid. We reverse. I. A. Title IX proscribes gender discrimination in education programs and activities receiving federal financial assistance. Title IX “contains two core provisions.” North Haven Bd. of Educ. v. Bell, - U.S. -, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Section 901(a) of the 1972 Act contains a program-specific ban of sex discrimination: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.. .. 20 U.S.C. § 1681 (emphasis added). Under section 902, each agency awarding federal financial assistance “other than a contract of insurance or guaranty” to any education program or activity is authorized to promulgate regulations to insure compliance with section 901(a). If compliance cannot be secured by voluntary means, section 902 authorizes the termination of federal funds to the program in which noncompliance is found. 20 U.S.C. § 1682. The Department of Education is the primary administrator of federal financial assistance to education. Pursuant to its regulations, 34 C.F.R. § 106.4(a), the Department réquires each recipient of federal aid to file an Assurance of Compliance as a means of securing adherence to Title IX. Under the Assurance in use at the time of this case was filed, the recipient agreed that it would [cjomply, to the extent applicable to it, with Title IX . . . and all requirements imposed by . . . the Department’s regulation . .. the end that, in accordance with Title IX ... no person . . . shall, on the basis of sex, be" }, { "docid": "10354344", "title": "", "text": "by any other means authorized by law.... . 42 U.S.C. § 2000d et seq. (1976). Sections 602 and 603 of Title VI are absolutely identical to sections 902 and 903 of Title IX; section 601 is almost identical except that it prohibits discrimination based on “race, color or national origin” whereas section 901 prohibits discrimination based on sex, and section 901 is limited to “any education program or activity” whereas section 601 covers “any program or activity” (emphasis added). . See note 3 supra. The Assurance of Compliance, HEW asserts, is critical to its effective enforcement of Title IX insofar as it provides a means of monitoring the threshold compliance with the statute by the large number of universities, colleges, schools, and other institutions covered by Title IX. A similar regulatory scheme is employed by the various agencies in charge of enforcing Title VI. See, e.g., 38 C.F.R. § 18.4 (1981) (assurance of compliance required as a condition of receipt of federal financial assistance from the Veterans Administration). . Hillsdale also contends that if Title IX is construed to apply to it to the extent urged by HEW, the statute would be unconstitutional. In view of our disposition, we need not consider this contention. Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1967). . See Seattle University v. HEW, 621 F.2d 992 (9th Cir.1980), vacated sub nom. United States Dept. of Educ. v. Seattle Univ., 456 U.S. -, 102 S.Ct. 2264, 73 L.Ed.2d 1280 (1982); Dougherty Cty. School System v. Harris, 622 F.2d 735 (5th Cir.1980), vacated sub nom. Bell v. Dougherty Cty. School System, 456 U.S. -, 102 S.Ct. 2264, 73 L.Ed.2d 1280 (1982); Romeo Community Schools v. HEW, 600 F.2d 581 (6th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Junior College Dist. v. Califano, 597 F.2d 119 (8th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Isleboro School Comm. v. Califano, 593 F.2d 424 (1st Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 387 (1979). These decisions have been overturned" }, { "docid": "6176162", "title": "", "text": "Part III of the majority opinion deals primarily with the question whether construing “federal financial assistance” to in-elude BEOGs is necessarily incompatible with, and mutually exclusive of, the statutory requirement that enforcement of Title IX be “program specific.” The majority answers this question by concluding that when the federal government furnishes indirect or non-earmarked aid to an institution, the institution itself must be the “program” for purposes of Title IX. (Majority op. at 699). That conclusion is unnecessary to the decision of this case. The controversy here does not implicate the application of Title IX to specific programs or activities within Grove’s curriculum. Instead, the essential issue merely concerns Grove’s refusal to execute the Assurance of Compliance. As a result, this case involves only a challenge to the facial validity of the Assurance of Compliance, and we need not pose the question raised by Haffer v. Temple University, 524 F.Supp. 531 (E.D.Pa.1981), appeal pending, No. 82-1049 (3d Cir.), whether a particular program within a university which has executed the Assurance of Compliance may be regulated under Title IX. The majority’s conclusion in Part III — C thus is dicta. Pursuant to its regulations, 34 C.F.R. § 106.4(a), the Department requires each recipient of federal aid to file an Assurance of Compliance as a means of securing adherence to Title IX. Under the Assurance in use at the time this case was filed, the recipient agrees that it will [cjomply, to the extent applicable to it, with Title IX . .. and all requirements imposed by . . . the Department’s regulation ... to the end that, in accordance with Title IX ... no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any education programs or activity for which the Applicant receives or bene fits from federal financial assistance. .. . Our decision in this case must be guided by North Haven Bd. of Educ. v. Bell, - U.S. -, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982), in which the Court examined" }, { "docid": "10354293", "title": "", "text": "Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.1974), aff’d without opinion, 529 F.2d 514 (4th Cir.1975). Bob Jones arose under Title VI of the Civil Rights Act of 1964 and involved the payment of veterans’ benefits to veterans attending Bob Jones University in Greenville, South Carolina. The University, which had a policy of denying admission to unmarried nonwhite students for religious reasons, refused to sign an Assurance of Compliance with Title VI. As a result, all VA assistance to the University was terminated. The district court in Bob Jones upheld the termination, finding the veterans’ benefits to be federal financial assistance “received” by the University. 396 F.Supp. at 601-602. In addition, the court held that the veterans’ payments were “specifically tied to the beneficiary’s participation in an educational program or activity,” equating the statutory phrase “program or activity” with the entire institution. Id. at 602. Relying on such language, the ALJ found that, insofar as the federal grant and loan monies “received” by Hillsdale were not earmarked for specific programs but were utilized for general educational purposes, the institution as a whole was being financially supported through the payments made by the students under the federal programs. Consequently, the ALJ concluded, “it is the entire entity, Hillsdale College, which must vouch that each education program or activity operated by it will be operated in compliance with Title IX.” Although the ALJ found Hillsdale, as an institution, to be a recipient of federal financial assistance by virtue of the student aid programs, the College was not required by the ALJ to sign the Assurance of Compliance. The ALJ noted that the Assurance of Compliance imposed a contractual duty on Hillsdale to comply with Title IX and Title IX regulations. Because several courts, including this court, had held that the regulations found at 34 C.F.R. §§ 106.-51-106.61 (1981), relating to the prohibition of sex discrimination in employment, were invalid, the ALJ held that under such circumstances, it would be an abuse of discretion and arbitrary and capricious to grant the relief requested by HEW. B. The Reviewing Authority Decision HEW and Hillsdale" }, { "docid": "6176130", "title": "", "text": "funds, the States agree to comply with federally imposed conditions. 451 U.S. at 17, 101 S.Ct. at 1539 (citations omitted). Congress has the same power to impose conditions on the use of funds granted to private educational institutions as it has when federal funds are granted to states. Bob Jones University v. Johnson, 396 F.Supp. 597, 606 (D.S.C.1974), aff’d mem., 529 F.2d 514 (4th Cir. 1975). In any event, we find it difficult to understand how the first amendment associational rights of Grove and Grove’s students are infringed, since both Grove and the students are free to avoid the conditions imposed by Title IX by ending their participation in the BEOG program. Moreover, the first amendment does not provide private individuals or institutions the right to engage in discrimination. Thus, neither Grove nor its students can assert an alleged first amendment right to be free of the strictures of Title IX’s prohibitions of gender discrimination and also claim the right to continued federal funding. Cf. Bob Jones, 396 F.Supp. at 607 (Free exercise clause and freedom of association provide no right against termination of federal funding based on Bob Jones’ racially discriminatory practices). V. After concluding that Grove was subject to Title IX, the district court ruled that Grove’s refusal to execute an Assurance of Compliance did not justify the Department’s action in terminating funds paid to Grove’s students under the BEOG program. The Department appealed this ruling. A. First, the district court held that Grove could not be required to sign an Assurance of Compliance, because subpart E of the regulation, which prohibits discrimination in employment was held by the district court to be invalid. According to the district court, Title IX did not authorize the Department to proscribe employment discrimination in educational institutions. Four Courts of Appeals reached the same conclusion. Only the Second Circuit concluded that subpart E was valid. North Haven Bd. of Educ. v. Hufstedler, 629 F.2d 773 (2d Cir. 1980). Since the district court’s decision, the Supreme Court has resolved this issue by affirming the Second Circuit’s decision. See North Haven Bd. of Educ." } ]

[ { "docid": "5056568", "title": "", "text": "affects fundamental rights nor proceeds along suspect lines. Dukes, 427 U.S. at 303, 96 S.Ct. at 2516. The hospital has a legitimate interest in its financial wellbeing, and the exclusive contract that permits it to recoup more revenues from the operation of the Radiology Department is rationally related to that interest. Any mode of operating the Radiology Department could be expected to have adverse effect on some parties. The Constitution does not authorize the court to invalidate the mode the hospital has chosen, simply because it may have some undesirable repercussions. 2. Due Process Essential to a claim of denial of due process is the infringement of a property or liberty interest. Dr. Mays’ medical staff privileges at Henry General are intact. He may give second readings of radiological procedures and may provide general medical services. The only restriction imposed by the hospital is that he may not provide primary radiological services. To have a property interest in providing primary radiological services, Dr. Mays must have “a legitimate claim of entitlement,” supported, for example, by contract or state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1971). Needless to say, Dr. Mays has no contract with the hospital giving rise to a property interest in the provision of primary radiological services. Nor does state law afford Dr. Mays such a property interest. A physician does not have “absolute authority to practice medicine in the hospitals of this State.” Dunbar v. Hospital Authority, 227 Ga. 534, 540, 182 S.E.2d 89 (1971). A hospital authority may restrict staff privileges by reasonable, non-discriminatory rules and regulations. Id. Likewise, a hospital authority has wide discretion to administer its facilities and to regulate the activities of its staff in order to promote optimal patient care and to assure the hospital’s financial wellbeing. The exclusive contract between Henry General and Southside is an exercise of that discretion, with the necessary consequence that the scope of other radiologists’ staff privileges is contracted. Because staff privileges may be validly restricted, however, Dr. Mays cannot show a liberty interest in" } ]

[ { "docid": "14430586", "title": "", "text": "See Harron v. United Hospital Center, Inc., 522 F.2d 1133, 1134 (4th Cir.1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1116, 47 L.Ed.2d 321 (1976) (court dismisses as “frivolous” radiologist claim that the hospital’s termination of his oral contract amounted to a reduction of his staff privileges, invoking hospital bylaws’ procedural requirement.) In addition to theoretical problems, there are enormous practical problems associated with adopting Dr. Engelstad’s expansive interpretation of the hospital bylaws’ language: “reduction or termination of staff privileges.” Essentially, Dr. Engelstad interprets the bylaws so as to give him a tenured position as director of pathology which could be terminated only for cause after a due process hearing. Not only would this be at odds with the terms of the parties’ oral contract, a contract that was clearly terminable at will, but it would also seriously undermine the hospital’s flexibility in making essentially administrative decisions. The choice of a department head is largely an administrative function. The hospital administrator’s discretion in discharging this function is generally regarded as essential to the proper and efficient operation of the hospital. The decision to terminate a director’s contract is frequently based upon organizational factors having nothing to do with the director’s competence to practice his medical profession. For example, the hospital may decide to contract with a group of pathologists, rather than one individual. Also, changes in medical science may make some department directorships obsolete. Finally, as was apparently the case here, the hospital administration may decide that it can no longer effectively work with a particular department head due to conflicting ideas about the way the department should operate. It would seem that the hospital should have the discretion to make this decision without affording the aggrieved director the panoply of due process protections applicable where doctor’s staff privileges have been reduced or terminated because of alleged professional incompetence or unethical behavior. Finally, despite Dr. Engelstad’s contention to the contrary, we believe there was evidence supporting the trial judge’s finding that Dr. Engelstad’s staff privileges following his termination were co-extensive with those of other staff pathologists at the hospital. Dr." }, { "docid": "21556238", "title": "", "text": "medical staff privileges decreased after Dr. Rodziewicz became Clinical Director because fewer surgeons then referred their patients to her: Staff privileges, [however], do not establish an employment contract with the hospital. Nor do they guarantee a doctor that his authorized practice in the hospital will have a particular economic value. Engelstad v. Virginia Mun. Hosp., 718 F.2d 262, 267 (8th Cir.1983). In this case, moreover, we do not wish to transform the economic value of medical staff privileges into a protected property interest. Dr. Faucher has also alleged that Appellee’s conduct deprived her of a protected liberty interest. We do not agree. Dr. Faucher has not shown that she was stigmatized by a change of status amounting essentially to a loss of employment, as required by the former Fifth Circuit in Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977). In Moore, fellow officers reported that the plaintiff, a police corporal, had failed to assist in an off-duty investigation of a possible breaking-and-entering suspect; in consequence, the chief of police reassigned Moore to patrolman’s duties. The court held: Assuming that the report and the assignment stigmatizes Moore, his retention of employment negates his claim that he was denied a “liberty”.... When an employee retains his position even after being defamed by a public official, the only claim of stigma he has derives from the injury to his reputation, an interest that [Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)] reveals does not rise to the level of a liberty interest. The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the Fourteenth Amendment. Moore, 557 F.2d at 438. In the case before us now, the undisputed record shows that the hospital never terminated or even suspended Dr. Faucher’s medical staff privileges. Even after Dr. Rodziewicz became Clinical Director, Dr. Faucher continued to have her full" }, { "docid": "3609586", "title": "", "text": "and undertakes explicitly or implicitly not to revoke these privileges without appropriate process, a protected property interest is created. For example, in Northeast Georgia Radiological Assocs., P.C. v. Tidwell, 670 F.2d 507, 510-11 (5th Cir. Unit B 1982), the Fifth Circuit reviewed the revocation of privileges from a physician with whom a public hospital had entered an exclusive services contract. The services contract incorporated certain hospital by-laws requiring notice and a hearing prior to corrective action against a staff physician. Id. at 511. The Fifth Circuit found that “the contract, incorporating the medical staff by-laws, and the by-laws perse, established ‘the existence of rules or mutually explicit understandings,’ and sustained [the] claim to a protected property interest.” Id. (citations omitted). As the basis for its decision, the Tidwell court relied on the Supreme Court’s holding in Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), that a state college teacher could have acquired a “legitimate claim of entitlement” to continued employment where state officials fostered the understanding that he would not be terminated absent proper cause. Perry, 408 U.S. at 602, 92 S.Ct. at 2700. Tidwell's application of Perry rests on the proposition that a public hospital creates a property interest within the meaning of Roth if, in granting hospital privileges to its staff physicians, the hospital also fosters the understanding that these privileges will not be terminated without some form of process. Other decisions in the circuit courts have applied a similar analysis. See Darlak, 814 F.2d at 1061-62 (public hospital’s regulations providing for a hearing prior to termination of staff privileges established property interest); Yashon, 825 F.2d at 1022-24 (assuming existence of property interest, and finding that internal hearing procedures established by public hospital satisfied due process); Setliff, 850 F.2d at 1395 (while public hospital’s requirement of cause to terminate staff privileges may have established property interest, no due process violation shown because pre-termination hearing was provided); Shahawy, 875 F.2d at 1532 (applying Tidwell directly). See also Caine v. Hardy, 943 F.2d 1406, 1411 (5th Cir.1991) (because physician could not be deprived" }, { "docid": "3403101", "title": "", "text": "when considering the suspension, denial, or revocation of the staff privileges of any member. Our decision recognizing Dr. Shahawy’s property interest is consistent with well-established precedent in this circuit which recognizes a physician’s medical staff privileges as a property interest protected by the fourteenth amendment. See, e.g., Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir.1975), aff'd on reh’g, 614 F.2d 946 (5th Cir.1980); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971); see also Palm Beach-Martin County Medical Center, Inc. v. Panaro, 431 So.2d 1023 (Fla.Dist.Ct.App.1983); Carida v. Holy Cross Hospital, Inc., 427 So.2d 803 (Fla.Dist.Ct.App.1983). Having found a property interest, we now consider whether Dr. Shahawy was afforded procedural due process when medical staff privileges were terminated. It is settled that “the categories of substance and procedure are distinct.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985). Although a state may elect not to confer a property interest in employment, “it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and concurring in result in part). In Tidwell, we stated that “[mjedical staff privileges embody such a valuable property interest that notice and hearing should be held prior to [their] termination or withdrawal, absent some extraordinary situation where a valid government or medical interest is at stake.” Tidwell, 670 F.2d at 511. A fundamental principle of procedural due process is that a person be given a pre-termination hearing prior to being deprived of any significant property interest. Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). Although a pre-termination hearing is generally favored, the extensiveness of such a hearing depends upon a balancing of competing interests. Such interests as retaining gainful employment must be balanced against the governmental interest in the expeditious removal of unsatisfactory employees and the need to avoid erroneous termination decisions. The record shows that Dr. Shahawy has been afforded" }, { "docid": "18595826", "title": "", "text": "this case was a court of law, not the Board. See Vail, 706 F.2d at 1454 (dissenting opinion). For all of these reasons, we hold that no predeprivation process was required. Our conclusion is supported by Northeast Georgia Radiological Association v. Tidwell, 670 F.2d 507 (5th Cir.1982). In that case the plaintiff, £ radiologist, applied for and received medical staff privileges at a hospital. Subsequently, he contracted with the Hospital Authority to provide the hospital with exclusive radiological services. After another radiologist offered to provide full time radiology services, the Hospital Authority voted to terminate the plaintiffs contract. Furthermore, the plaintiff’s medical staff privileges were withdrawn. Relying on the contract and the medical staff by-laws, the court determined that the plaintiff’s due process rights were violated when he was deprived of his medical staff privileges without any pretermination process.' Id. at 511. The court, however, did not suggest that any hearing was required before termination of the contract itself. In the case at bar, of course, only the contract was terminated, Dr. Boucvalt was not deprived of his medical staff privileges. We decline to apply the predeprivation hearing requirement of Louder-mill/Roth/Sindermann so as to federalize all contract law. See Casey v. Depetrillo, 697 F.2d 22, 23 (1st Cir.1983); Findeisen, 749 F.2d at 240-41 (concurring opinion); Vail, 706 F.2d at 1456 (dissenting opinion). In the present case, the traditional postdeprivation contract remedy constitutes all the process that was due. Cf. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984); Parrott v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (holding that postdeprivation tort remedy constitutes all the process that is due for unauthorized negligent and intentional torts by state officials). If Boucvalt was entitled to some pretermination process in this case, the pretermination process he received met minimal constitutional standards. Boucvalt had notice of the Board’s position and an opportunity to respond. Loudermill, 105 S.Ct. at 1495. He was fully informed of the Board’s position that he was contractually required to be accountable to the Executive Director. He attended two Board" }, { "docid": "18595825", "title": "", "text": "their own personal services but to supervise others and to manage the department. Under some circumstances, the anesthesiologists were required to hire other anesthesiologists at their own expense. While termination of the contract deprived Boucvalt of a lucrative source of income, it did not deprive him of his means of livelihood. He retained his medical staff privileges and therefore was still able to work at the hospital. Moreover, the contract was not unlimited in duration; indeed, it was to last less than one additional year from the date that it was terminated. Boucvalt’s breach of contract remedy fully compensated him for the loss of the contract during this time. Finally, a formal hearing before the Board would have served no special purpose. The only issue that separated the parties was the well-ventilated question of whether Boucvalt had a contractual right to refuse to be accountable to the Executive Director; this is not a matter about which the Board or Boucvalt had any discretion or particular expertise beyond what they had exhausted. The proper decisionmaker in this case was a court of law, not the Board. See Vail, 706 F.2d at 1454 (dissenting opinion). For all of these reasons, we hold that no predeprivation process was required. Our conclusion is supported by Northeast Georgia Radiological Association v. Tidwell, 670 F.2d 507 (5th Cir.1982). In that case the plaintiff, £ radiologist, applied for and received medical staff privileges at a hospital. Subsequently, he contracted with the Hospital Authority to provide the hospital with exclusive radiological services. After another radiologist offered to provide full time radiology services, the Hospital Authority voted to terminate the plaintiffs contract. Furthermore, the plaintiff’s medical staff privileges were withdrawn. Relying on the contract and the medical staff by-laws, the court determined that the plaintiff’s due process rights were violated when he was deprived of his medical staff privileges without any pretermination process.' Id. at 511. The court, however, did not suggest that any hearing was required before termination of the contract itself. In the case at bar, of course, only the contract was terminated, Dr. Boucvalt was not" }, { "docid": "3609584", "title": "", "text": "329, § 17 (1990); P.R.Laws Ann. tit. 20, § 52 (1989); R.I.Gen.Laws § 5-37-5.1 (1991). A common feature of these statutes is the requirement that in disciplinary proceedings affecting the status of a physician’s license, the physician is entitled to notice and a hearing before the licensing board. The focus in any due process claim under § 1983 challenging the revocation or restriction of a physician’s property interest in a medical license is therefore usually on the issue of the adequacy of the process provided by the state licensing board. Whether a physician’s hospital privileges are a property interest subject to due process protections raises a question quite different from that presented in suits concerning medical license revocations or restrictions. In this circuit we have never addressed a challenge to the suspension of a physician’s hospital privileges based on a claim of a violation of due process. In other circuits, however, due process challenges involving the suspension or denial of hospital privileges have arisen with some frequency. In cases involving public hospitals, several circuits have acknowledged that in certain circumstances a physician’s privileges constitute a property interest whose revocation or suspension by the hospital must satisfy the requirements of due process. See Darlak v. Bobear, 814 F.2d 1055, 1061 (5th Cir.1987) (“It is well-settled in this circuit that a physician’s staff privileges may constitute a property interest protected by the due process clause_”); Yashon v. Hunt, 825 F.2d 1016, 1022-27 (6th Cir.1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2015, 100 L.Ed.2d 602 (1988) (reviewing for conformity with principles of due process public hospital’s refusal to reinstate neurologist’s hospital privileges); Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1394-95 (10th Cir.1988) (while physician might have had property interest in his medical privileges, no due process violation occurred where hospital provided pre-suspension hearing); Shahawy v. Harrison, 875 F.2d 1529, 1532-33 (11th Cir.1989) (although physician had protected property interest in staff privileges, public hospital’s termination of these privileges comported with due process). All these cases are premised on the assumption that when a public hospital grants a physician hospital privileges," }, { "docid": "3609587", "title": "", "text": "would not be terminated absent proper cause. Perry, 408 U.S. at 602, 92 S.Ct. at 2700. Tidwell's application of Perry rests on the proposition that a public hospital creates a property interest within the meaning of Roth if, in granting hospital privileges to its staff physicians, the hospital also fosters the understanding that these privileges will not be terminated without some form of process. Other decisions in the circuit courts have applied a similar analysis. See Darlak, 814 F.2d at 1061-62 (public hospital’s regulations providing for a hearing prior to termination of staff privileges established property interest); Yashon, 825 F.2d at 1022-24 (assuming existence of property interest, and finding that internal hearing procedures established by public hospital satisfied due process); Setliff, 850 F.2d at 1395 (while public hospital’s requirement of cause to terminate staff privileges may have established property interest, no due process violation shown because pre-termination hearing was provided); Shahawy, 875 F.2d at 1532 (applying Tidwell directly). See also Caine v. Hardy, 943 F.2d 1406, 1411 (5th Cir.1991) (because physician could not be deprived of staff privileges without just cause, tenure on public hospital’s medical staff was property interest). A state may also directly create a property interest in physicians’ hospital privileges at public and private hospitals, either by statutory enactment or through its deci-sional law. See Brooks v. Arlington Hosp. Ass’n, 850 F.2d 191, 198 (4th Cir.1988) (noting Virginia statute that imposes a requirement of a written statement of reasons for hospital’s suspension or termination of privileges); Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1033-34 (9th Cir.1989), aff'd on other grounds, — U.S. —, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991) (discussing California statute requiring that both public and private hospitals incorporate certain physician peer-review procedures in their by-laws); Lew v. Kona Hosp., 754 F.2d 1420, 1424 (9th Cir.1985) (property right in employment as probationary hospital staff member recognized by Hawaii state courts). Where state law directly establishes a property interest in hospital privileges, all of the state’s licensed physicians are entitled to due process in decisions affecting their hospital privileges. The public or private status of" }, { "docid": "21556246", "title": "", "text": "the issue of medical staff privileges as a protected property interest, see Shahawy v. Harrison, 778 F.2d 636, 643 (11th Cir.1985), (to establish a protected property interest, Shahawy must allege injury to a contract right or an inability to practice medicine without the cardiac catheterization privileges). See also Daly v. Sprague, 675 F.2d 716, 727 (5th Cir.1982) (Daly, who provided \"no facts to show that his clinical privileges would be analogous to medical staff privileges, that there was any explicit or implicit written or oral argument or understanding which created an entitlement to those privileges, or that the removal of his clinical privileges actually totally foreclosed his ability to practice ... did not meet his bur den of presenting facts to show that a property interest existed.\") Finally, see Note, \"Procedural Due Process Rights of Physicians Applying for Hospital Staff Privileges.” 17 Loy.U.Chi.L.J. 453 (1986). . The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . We note parenthetically that in Great American S & L Ass’n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Supreme Court appeared to hold that the only conspiracies actionable under Section 1985 were those motivated by racial animus. There, the Court stated that \"[u]nimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).” Novotny, 442 U.S. at 378, 99 S.Ct. at 2352. Since Novotny arose in the context of private employment, however, we will not flatly conclude that Dr. Faucher may not bring her claim for gender-based discrimination under the auspices of Section 1985(3). We save that question for another day." }, { "docid": "3403100", "title": "", "text": "claim of entitlement to it.... ... Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Shahawy I, 778 F.2d at 642 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). In Northeast Georgia Radiological Associates v. Tidwell, 670 F.2d 507 (5th Cir. Unit B 1982), we held that a physician had a constitutionally-protected property interest in medical staff privileges where, among other things, the medical staff’s bylaws detailed an extensive procedure to be followed when corrective action against a medical staff physician was warranted. Tidwell, 670 F.2d at 511. Applying the same rationale here, we hold that Dr. Shahawy has a constitutionally-protected property interest in medical staff privileges. Here, as in Tidwell, the medical staff bylaws establish specific standards and procedures to be applied when considering the suspension, denial, or revocation of the staff privileges of any member. Our decision recognizing Dr. Shahawy’s property interest is consistent with well-established precedent in this circuit which recognizes a physician’s medical staff privileges as a property interest protected by the fourteenth amendment. See, e.g., Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir.1975), aff'd on reh’g, 614 F.2d 946 (5th Cir.1980); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971); see also Palm Beach-Martin County Medical Center, Inc. v. Panaro, 431 So.2d 1023 (Fla.Dist.Ct.App.1983); Carida v. Holy Cross Hospital, Inc., 427 So.2d 803 (Fla.Dist.Ct.App.1983). Having found a property interest, we now consider whether Dr. Shahawy was afforded procedural due process when medical staff privileges were terminated. It is settled that “the categories of substance and procedure are distinct.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985). Although a state may elect not to confer a property interest in employment, “it may not constitutionally authorize the deprivation of such an interest," }, { "docid": "3403096", "title": "", "text": "HATCHETT, Circuit Judge: Antitrust, civil rights, and defamation rulings are reviewed in this case arising from a public hospital board’s termination of a physician’s medical staff membership and other privileges. We affirm in part and reverse in part. I. FACTS In November, 1982, appellants, Mahfouz El Shahawy and his medical association, brought this action against the Sarasota County Public Hospital Board, the hospital’s medical review committee members, and physicians on the hospital’s staff. The lawsuit resulted from the hospital board’s denial of Shahawy’s request for cardiac catheterization laboratory privileges, and alleged antitrust, civil rights, racketeering, and state common law violations. The district court dismissed Shahawy’s original and amended complaints for failure to state federal claims for relief. Shahawy appealed the district court’s dismissal of his claims. In Shahawy v. Harrison, 778 F.2d 636 (11th Cir.1985), modified, 790 F.2d 75 (11th Cir.1986), we affirmed in part, reversed in part, and remanded the lawsuit for further consideration. In doing so, we held that Shahawy’s antitrust counts sufficiently alleged that the appellees’ business activities had a substantial impact on interstate commerce. Shahawy I, 778 F.2d at 641. In addition, because we found that Shahawy had no constitutionally protected property or liberty interest in cardiac catheterization laboratory privileges, we held that the district court properly dismissed Shahawy’s civil rights counts. Shahawy I, 778 F.2d at 644. We also held that the district court had not abused its discretion by dismissing Sha-hawy’s pendent state law claims. Shahawy I, 778 F.2d at 644. Between the time of the district court’s dismissal of Shahawy’s original complaint and this court’s ruling on appeal, the hospital board declined to renew Shahawy’s medical staff privileges. Consequently, following remand, Shahawy amended his complaint to allege a denial of his constitutional rights based on the termination of his medical staff privileges, and renewed the antitrust, civil rights, RICO defamation, and state law claims. As to the amended complaint, the district court granted the appellees’ motions for summary judgment on the racketeering, section 1985, and antitrust claims (exclusion from catheterization laboratory counts). The district court denied the motions for summary judgment on Shahawy’s" }, { "docid": "21556237", "title": "", "text": "408 U.S. 564, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (“Only last year, the Court held that this principle ‘proscribing summary dismissal from public employment without hearing or inquiry required by due process’ also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment,” citing Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418). Thus, we cannot say that the absence of a formal contract between Dr. Faucher and the Hospital Authority disposes of her claim. Dr. Faucher cites Northeast Georgia Radiological Associates v. Tidwell, 670 F.2d 507 (5th Cir.1982) to support her assertion that the scheduling memorandum’s adverse effect on her case load amounted to a deprivation of her protected property interests. In Tidwell, however, a hospital authority actually terminated the appellant’s staff privileges, and the court held that this amounted to a deprivation of a protected interest. No such termination occurred here. Thus, Dr. Faucher’s real claim is that the economic value of her medical staff privileges decreased after Dr. Rodziewicz became Clinical Director because fewer surgeons then referred their patients to her: Staff privileges, [however], do not establish an employment contract with the hospital. Nor do they guarantee a doctor that his authorized practice in the hospital will have a particular economic value. Engelstad v. Virginia Mun. Hosp., 718 F.2d 262, 267 (8th Cir.1983). In this case, moreover, we do not wish to transform the economic value of medical staff privileges into a protected property interest. Dr. Faucher has also alleged that Appellee’s conduct deprived her of a protected liberty interest. We do not agree. Dr. Faucher has not shown that she was stigmatized by a change of status amounting essentially to a loss of employment, as required by the former Fifth Circuit in Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977). In Moore, fellow officers reported that the plaintiff, a police corporal, had failed to assist in an off-duty investigation of a possible breaking-and-entering suspect; in consequence, the chief of police reassigned Moore to patrolman’s duties." }, { "docid": "21556234", "title": "", "text": "the Hospital.” Thus, we find that both Mr. Rose and Dr. Rod-ziewicz were integrally involved in the management and administration of the Hospital, and we also find ample support to hold that authorities of a public hospital such as this one act under color of state law for purposes of sections 1983 and 1985: [TJhere is no question that when those in charge of the affairs of a public hospital deal with staff ... the dealings must conform to the requirements and prohibitions of the fourteenth amendment. And, if the authorities of a public hospital, acting under color of law, deprive a person of a federally protected right, he may seek redress under § 1983. Briscoe v. Bock, 540 F.2d 392, 394-95 (8th Cir.1976). Similarly, in Malak v. Associated Physicians, Inc., 784 F.2d 277, 282 (7th Cir.1986), a case again involving termination of a physician’s staff privileges by a chief executive officer, the Seventh Circuit held that “the conduct of a public hospital and its employees is clearly state action....” Finally, in Smith v. Cleburne County Hosp., 607 F.Supp. 919, 928 (D.C.Ark.1985), where a hospital’s medical staff members suspended the plaintiff’s staff privileges, a district court characterized the defendants, “... a county facility and county officials ...” as “... acting under color of state law....” In the instant case, therefore, we too hold that Mr. Rose and Dr. Rodziewicz were county officials acting under color of state law for purposes of Dr. Faueher’s suit under sections 1983 and 1985. B. Procedural Due Process Our next question, now that we have established that appellees’ conduct was under color of state law, is whether that conduct deprived Dr. Faucher of any of her due process rights made actionable pursuant to 42 U.S.C. §§ 1983 and 1985. We conclude that it did not. Our threshold question in this matter is whether the Appellees’ conduct deprived Dr. Faucher of a protected property interest in her staff privileges or of a protected liberty interest in her professional reputation. In this case, we doubt that such protected interests exist. In order to establish a property interest," }, { "docid": "21556239", "title": "", "text": "The court held: Assuming that the report and the assignment stigmatizes Moore, his retention of employment negates his claim that he was denied a “liberty”.... When an employee retains his position even after being defamed by a public official, the only claim of stigma he has derives from the injury to his reputation, an interest that [Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)] reveals does not rise to the level of a liberty interest. The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the Fourteenth Amendment. Moore, 557 F.2d at 438. In the case before us now, the undisputed record shows that the hospital never terminated or even suspended Dr. Faucher’s medical staff privileges. Even after Dr. Rodziewicz became Clinical Director, Dr. Faucher continued to have her full staff privileges and to receive referrals at the Hospital. Under these circumstances, Dr. Faucher’s complaint does not allege sufficient facts to implicate the existence of a liberty interest. Even, however, if we were to find that Dr. Faucher has shown a protected property or liberty interest in this matter, we still could not find that appellees’ conduct deprived her of those interests without due process of law. The record in this case shows that the Hospital had an extensive internal appeals procedure. Although Dr. Faucher chose not to utilize it, we find that its availability served to fully protect her constitutional rights to procedural due process. The by-laws of the Hospital Authority’s medical staff provide, in meticulous detail, for the right to a hearing and the right to an appellate review. For example, under heading of “Hearing,” those by-laws state: When any practitioner receives notice of a recommendation of the Executive Committee that, if approved by decision of the Hospital Authority will adversely affect his/her appointment or reappointment to or status as a practitioner of" }, { "docid": "23123416", "title": "", "text": "to additional clinical privileges. This court was presented with such a claim in Shahawy I. In that case, we stated that to establish a protected property interest in medical staff privileges, a physician must allege injury to a contract right or an inability to practice medicine without the requested privileges. Id. at 643. In Shahawy I, we held that a physician with staff privileges did not have a constitutionally protected property interest in his application for additional privileges. Dr. Todorov argues that Shahawy I was wrongly decided and directs us to our precedent to support his argument. He has, however, misread our precedent. Most of the cases he cites concern the termination of staff privileges. See, e.g., Shahawy v. Harrison, 875 F.2d 1529 (11th Cir.1989) (Shahawy II) (where the hospital in Shahawy I subsequently refused to renew the physician’s staff privileges); Northeast Ga. Radiological Assocs. v. Tidwell, 670 F.2d 507 (5th Cir. Unit B 1982); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971). These decisions are predicated on the existence of a contract right which comes into being once a physician is granted privileges and do not support Dr. Todo-rov’s position. Dr. Todorov does not claim any contractual right in additional privileges; he only alleges a contractual right in the standards DCH uses to grant privileges. If, however, there is no protected interest in the privileges, due process requirements will not delineate the procedures used to grant or deny these privileges. The remaining cases the plaintiff cites involve factual settings where the denial of staff privileges seriously limited the ability of a physician to engage in private practice. See, e.g., Shaw v. Hospital Auth., 507 F.2d 625 (5th Cir.1975). This court has held, however, that if the denial of staff privileges does not seriously foreclose the ability of a physician to engage in private practice, then the physician does not satisfy his burden of presenting facts to show that a property interest existed. See Burkette v. Lutheran Gen. Hosp., 595 F.2d 255, 256 (5th Cir.1979); see also Daly v. Sprague, 675 F.2d 716, 727 (5th Cir.1982), cert. denied, 460 U.S." }, { "docid": "15291609", "title": "", "text": "that interest did not include the right to reinstatement at the Hospital. The Board was under no duty to accept the recommendation of the Hearing Committee or the EMS. Article VII, § 6d of the Hospital’s Bylaws provides that the Board is entrusted with the power to “review the recommendation[s] and supporting documents and make a final decision” on the corrective action. That is precisely what the Board did, and we will not dispute their decision. As the Eleventh Circuit held in Shahawy v. Harrison: [O]ur role on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweigh the evidence regarding the renewal or termination of medical staff privileges. Rather, the court is charged with the narrow responsibility of assuring that the qualifications imposed by the Board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. 875 F.2d 1529, 1538 (11th Cir.1989). Accordingly, we need not reach the determination of whether Dr. Draghi had a liberty interest in his employment and calling; even assuming that he had such an interest we find that Dr. Draghi has not presented facts showing that he was not afforded due process prior to his termination from the Hospital. D. Alleged Substantive Due Process Violations Dr. Draghi also alleges that the Hospital violated his substantive due process rights by terminating his employment and clinical privileges. We can dispose of this claim in short order. As we have repeatedly held, a plaintiff bringing a substantive due process claim predicated on a deprived property or liberty interest must show (1) that the state’s decision was arbitrary and irrational, and (2) that the state committed a separate constitutional violation or that the state law remedies are inadequate. Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir.1997); Doherty v. City of Chicago, 75 F.3d 318, 325 (7th Cir.1996). However, since this is a § 1983" }, { "docid": "16623478", "title": "", "text": "notice and hearing in proceeding to revoke or suspend license to practice medicine, 10 A.L.R. 5th 1 (1993). Some courts have expressed the view that “[hjospital staff privileges are generally considered to be a property or liberty interest of the physician,” at least where they have already been granted by a government-sponsored facility. Beyer v. Lakeview Community Hospital, 187 F.3d 634 (Table), 1999 WL 552606, *3 (6th Cir.1999) (citing Foster v. Mobile County Hosp. Bd., 398 F.2d 227, 229 (5th Cir.1968)). A limitation, revocation or termination of existing hospital staff privileges would thus have due process implications. At least two circuits have held that “[sjeeking staff privileges, which entitle a physician to admit patients to a particular hospital, has been held to be a protected liberty interest .... ” Silverstein v. Gwinnett Hosp. Authority, 861 F.2d 1560, 1566 (11th Cir.1988) (citations omitted). See Burkette v. Lutheran General Hospital, 595 F.2d 255, 255-256 (5th Cir.1979) (“We have held that a physician in private 'practice denied staff privileges in a hospital that is subject to the fourteenth amendment possesses a protectible ‘liberty’ interest that can ground a complaint on such a denial. Shaw v. Hospital Authority, 507 F.2d 625 (5th Cir.1975).”). To pursue a due process claim in the courts based upon a denial of hospital staff privileges, however, those privileges must in fact be denied before the claim may be pursued in the courts. See Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, 93 Cal.App.4th 607, 113 Cal.Rptr.2d 309 (2001) (physician challenging hospital’s denial or ynthdrawal of staff privileges must pursue the internal remedies afforded by that hospital to a final decision on the merits before resorting to the courts for relief); Eufemio v. Kodiak Island Hosp., 837 P.2d 95 (Alaska 1992) (exhaustion of administrative remedies required); Eidelson v. Archer, 645 P.2d 171 (Alaska 1982). The reported cases involving due process claims and hospital staff privileges arise from the actual denial, restriction, non-renewal or revocation of staff privileges. See generally Annotation, Exclusion of, or discrimination against, physician or surgeon by hospital, 28 A.L.R. 5th 107, 1995 WL 900213" }, { "docid": "3609585", "title": "", "text": "acknowledged that in certain circumstances a physician’s privileges constitute a property interest whose revocation or suspension by the hospital must satisfy the requirements of due process. See Darlak v. Bobear, 814 F.2d 1055, 1061 (5th Cir.1987) (“It is well-settled in this circuit that a physician’s staff privileges may constitute a property interest protected by the due process clause_”); Yashon v. Hunt, 825 F.2d 1016, 1022-27 (6th Cir.1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2015, 100 L.Ed.2d 602 (1988) (reviewing for conformity with principles of due process public hospital’s refusal to reinstate neurologist’s hospital privileges); Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1394-95 (10th Cir.1988) (while physician might have had property interest in his medical privileges, no due process violation occurred where hospital provided pre-suspension hearing); Shahawy v. Harrison, 875 F.2d 1529, 1532-33 (11th Cir.1989) (although physician had protected property interest in staff privileges, public hospital’s termination of these privileges comported with due process). All these cases are premised on the assumption that when a public hospital grants a physician hospital privileges, and undertakes explicitly or implicitly not to revoke these privileges without appropriate process, a protected property interest is created. For example, in Northeast Georgia Radiological Assocs., P.C. v. Tidwell, 670 F.2d 507, 510-11 (5th Cir. Unit B 1982), the Fifth Circuit reviewed the revocation of privileges from a physician with whom a public hospital had entered an exclusive services contract. The services contract incorporated certain hospital by-laws requiring notice and a hearing prior to corrective action against a staff physician. Id. at 511. The Fifth Circuit found that “the contract, incorporating the medical staff by-laws, and the by-laws perse, established ‘the existence of rules or mutually explicit understandings,’ and sustained [the] claim to a protected property interest.” Id. (citations omitted). As the basis for its decision, the Tidwell court relied on the Supreme Court’s holding in Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), that a state college teacher could have acquired a “legitimate claim of entitlement” to continued employment where state officials fostered the understanding that he" }, { "docid": "21556245", "title": "", "text": "the pendent claim “is to be judged on an abuse of discretion standard.” L.A. Draper and Son, 735 F.2d at 420. In the instant case, the district court properly dismissed Dr. Faucher’s pendent claims as a result of its dismissal of all of her federal claims. CONCLUSION We hold, therefore, that although the Appellants acted under color of state law, they did not deprive Dr. Faucher of any of her due process rights made actionable under 42 U.S.C. §§ 1983 and 1985. Although we do not reach the issue of qualified immunity, we do hold that the district court properly dismissed her pendent state claims. The judgment of the district court is therefore AFFIRMED. . The contract with Dr. Rodziewicz, however, did provide, that he agree \"to provide or to arrange for the provision of all material services involved in the administration of anesthesia in the Hospital, as may be required or requested by the patients, physicians and surgeons using the facilities of the Hospital” (Agreement, Section 2). (Emphasis supplied). . For further guidance on the issue of medical staff privileges as a protected property interest, see Shahawy v. Harrison, 778 F.2d 636, 643 (11th Cir.1985), (to establish a protected property interest, Shahawy must allege injury to a contract right or an inability to practice medicine without the cardiac catheterization privileges). See also Daly v. Sprague, 675 F.2d 716, 727 (5th Cir.1982) (Daly, who provided \"no facts to show that his clinical privileges would be analogous to medical staff privileges, that there was any explicit or implicit written or oral argument or understanding which created an entitlement to those privileges, or that the removal of his clinical privileges actually totally foreclosed his ability to practice ... did not meet his bur den of presenting facts to show that a property interest existed.\") Finally, see Note, \"Procedural Due Process Rights of Physicians Applying for Hospital Staff Privileges.” 17 Loy.U.Chi.L.J. 453 (1986). . The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered" }, { "docid": "23123415", "title": "", "text": "it. He must, instead, have a legitimate claim of entitlement to it .... Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims 'of entitlement to those benefits. Id. at 577, 92 S.Ct. at 2709. This means that claims of entitlement, under the due process clause, must be supported by some state statute, legal rule, or a mutually explicit understanding. See Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972). “To date, the Supreme Court has held that mutually explicit understandings can be proved through either the existence of an implied contract or through the existence of ‘industrial common law.’ ” Shahawy v. Harrison, 778 F.2d 636, 642 (11th Cir.1985) (Shahawy I). To support the claim of a property interest in the present case, Dr. Todorov must show an entitlement, under state law, to additional clinical privileges. This court was presented with such a claim in Shahawy I. In that case, we stated that to establish a protected property interest in medical staff privileges, a physician must allege injury to a contract right or an inability to practice medicine without the requested privileges. Id. at 643. In Shahawy I, we held that a physician with staff privileges did not have a constitutionally protected property interest in his application for additional privileges. Dr. Todorov argues that Shahawy I was wrongly decided and directs us to our precedent to support his argument. He has, however, misread our precedent. Most of the cases he cites concern the termination of staff privileges. See, e.g., Shahawy v. Harrison, 875 F.2d 1529 (11th Cir.1989) (Shahawy II) (where the hospital in Shahawy I subsequently refused to renew the physician’s staff privileges); Northeast Ga. Radiological Assocs. v. Tidwell, 670 F.2d 507 (5th Cir. Unit B 1982); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971). These decisions are predicated on the existence of a contract right which" } ]

[ { "docid": "23526189", "title": "", "text": "He was then transported to the Northern District of California, where the case was tried. Layton argues that venue for trial was improper in the Northern District of California. He bases his argument on 18 U.S. C. § 3238, which provides in pertinent part: The trial of all offenses begun or committed ... out of the jurisdiction of any particular State or district, shall be in the district in which the offender ... is arrested or is first brought; but if such offender ... [is] not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender. ... 18 U.S.C. § 3238 (1982). Layton contends, as he did below, that § 3238 requires that trial be held in the district where the offender was “first brought” — in this case, the Eastern District of New York. He argues that the portion of the statute following the semi-colon provides for the filing of an indictment elsewhere but does not establish an alternative venue for trial. The Government acknowledges that Layton was “first brought” into the Eastern District of New York. The Government, however, maintains that when an offender is outside the United States and the indictment is properly filed in the district of the offender’s last known place of residence pursuant to § 3238, that district is a proper venue for trial, as well. The proper construction of § 3238 is a question of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Treating the question as one of “first impression in this and every other circuit,” United States v. Layton, 519 F.Supp. 942, 943 (N.D.Cal.1981), the district court concluded that the clause preceding the semicolon in § 3238 was intended “simply to provide an arbitrary rule of venue for offenses committed outside of the United States.” Id. at 944. The court noted that the provision for filing an indictment in the district of the offender’s" } ]

[ { "docid": "6948952", "title": "", "text": "of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. As amended May 23, 1963, Pub.L. 88-27, 77 Stat. 48.” . Buie 21 (a) and (b) “(a) For Prejudice in the District or Division. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division if the court is satisfied that there exists in the district or division where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that district or division.” “(b) Offense Committed in Two of More Districts or Divisions. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged.” . The following is from the memorandum ruling of the trial court: “Miller’s motion to transfer to Connecticut is based upon §§ 3237 and 3238 of Title 18, U.S.C.A. He contends that 3237 (b) is controlling and that the present offense is one which ‘involves use of the mails and is an offense described in Section 7201 * * * of the Internal Revenue Code of 1954’; or that under 3238 it is an offense ‘begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or District,’. The short answer to this contention is that the indictment does not allege an" }, { "docid": "3296223", "title": "", "text": "the high seas, during a six day period in February 1999, the defendants knowingly discharged and caused to be discharged approximately 442 metric tons of diesel-contaminated wheat and diesel fuel into the sea without use of an oil discharge monitoring and control system. It further charges that Philip J. Hitchens, a named defendant, with being a resident of the Southern District of Florida. . Title 18, U.S.C. § 3238 [Offense not committed in any district] states: “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; bout if such offender or offenders are not so arrested or brought into any district, an indictment may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.” . The Government contends that the first, and mandatory, choice of forum under section 3228 does not resolve the question because \"... none of the defendants charged in Count 2 were arrested or brought into any district prior to charges being preferred in this case.” Government's Reply, [D.E. # 65, page 4]. While I have denied the Defendant’s pre-trial motion to dismiss Count Two based on venue at this preliminary stage, the Government is hereby placed on notice that further legal research as well as the determination of factual issues by the jury by special interrogatory verdicts will be required before the issues raised by the Defendants under the three tier scheme of § 3228 can be finally resolved. . The APPS statute defines the MARPOL Protocol as the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, and includes the Convention; .... 33 U.S.C. § 1901(a). The “Convention” is further defined to mean \"the International Convention from the" }, { "docid": "1480661", "title": "", "text": "The court-martial’s jurisdiction is not subordinate to the Act of Congress, 18 U.S.C. § 3238, passed pursuant to Article III, stating that: “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.” (Accent added.) This statute does not clothe the serviceman with any vested privilege. In our view, Article VII of the Agreement, providing court-martial trial for offenses committed abroad, is not incompatible with the statute. The treaty-making authority evidently designed Article VII to meet the special exigencies of a foreign occupation. This was its right. To read Article VII otherwise would disrupt the whole pattern of the treaty. This part of the Agreement is impliedly an assurance to the “receiving State” that those servicemen of the “sending State” who break the former’s laws should be tried immediately. Expedition would be defeated if the offender could not be punished by the American military authorities in Germany. This prohibition might well discourage the referral of the accused to the “sending State”, and substitute a trial in the “receiving State”, as the latter may insist upon under the Agreement. Such a result would destroy the comity evinced by the signatories. We believe the treaty authorized, and the statute permitted, the court-martial of Bell. The remaining question raised by the appellant of the retroactivity of O’Callahan is academic. We note that the issue has been presented in Relford v. Commandant, 409 F.2d 824 (10 Cir. 1970), cert. granted, 397 U.S. 934, 90 S.Ct. 958, 25 L.Ed.2d 114 (1970). The District Court’s dismissal was" }, { "docid": "5617977", "title": "", "text": "the Treaty is a means to protect the national interest implicit in freedom of the seas — an interest that the United States has held dear throughout its history. . 18 U.S.C. § 3238. Offenses not committed in any district The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. . 18 U.S.C. § 3237. Offenses begun in one district and completed in another fa) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves. . Williams admits that the conspiracy was designed to have effects within the territorial jurisdiction of the United States. . Mr. Justice White specifically noted this in his dissent. See Rakas v. Illinois, - U.S. -, 99 S.Ct. 421, 425 n.3, 58 L.Ed.2d 387 (1978) (White, J., dissenting)." }, { "docid": "18732677", "title": "", "text": "or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. The 1948 revision inserted the words “begun or” in the first line of the section. The Revisor’s Note says those words were inserted “to clarify the scope of this section and section 3237 of this title.” This leads the United States to contend that § 3238 is now a continuing offense statute comparable to § 3237(a) and that venue may be founded upon it if the offense was begun abroad even though it may have involved substantial activity in one or more districts within the jurisdiction of the United States. The defendants, on the other hand, taking their cue from the section’s title, insist that venue may not be founded upon § 3238 if the offenses involved any activity in the United States, however predominantly foreign the offenses may have been. The defendants offer as an explanation of the insertion of the words “begun or” an intention to reverse the result in the old case of United States v. M’Gill, 4 U.S. (4 Dall.) 426, 1 L.Ed. 894 (1806). In M’Gill, the defendant was prosecuted for murder. He struck the fatal blow while on shipboard on the high seas, but the victim did not die until after he had been put ashore outside the jurisdiction of the United States. The Court held that the crime of murder was not complete until the victim’s death and, hence, there could be no prosecution for murder under the predecessor of § 3238. Id. 4 Dall, at 429, 4 U.S. at 429. The suggestion that the 1948 amendment of § 3238 was designed to take care of the more than 140 year old M’Gill problem is without foundation. The 1948 amendment of § 3238 would not take care oí the basic M’Gill problem. If the victim" }, { "docid": "6831366", "title": "", "text": "territorial jurisdiction of the United States and upon the high seas.” Clifford Information at 2. 18 U.S.C. § 3238 states: The trial of all offenses begun or committed upon the high seas ... shall be in the district in which the offender ... is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender.... The Clifford information does not allege that he was • ever arrested or brought into any district; it does allege that “[t]he last known residence of JAY CLIFFORD is within the Western District of Washington.” Clifford Information at 1. Therefore, the information, on its face, is sufficient to establish venue in the Western District of Washington. The Jensen/Peterson information alleges that they committed count one “within the Western District of Washington, and within the special maritime and territorial jurisdiction of the United States and upon the high seas.” Jensen/Peterson Information at 2. The information also alleges that the last known residences of both men were within the Western District of Washington. The government therefore argues that venue is proper as to Jensen and Peterson, just as with Clifford, in the Western District of Washington under 18 U.S.C. § 3238. Defendants counter that section 3238 applies only when the crime is committed exclusively on the high seas and not in any district: Because the information alleges that the crime was committed on the high seas and within a district, section 3238 is inapplicable. We do not reach this issue, as it makes no difference in this case. If section 3238 applies, then venue in the Western District of Washington is proper as the place of Jensen’s and Peterson’s last known residences. If section 3238 is not applicable, venue is still proper as the place where the crime was committed. See U.S. Const, art. Ill, § 2, cl. 3 (“The Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed....”); Fed.R.Crim.P." }, { "docid": "1480660", "title": "", "text": "all courts of the United States, for the Agreement, having the form and force of a treaty, is given supremacy by Article VI, cl. 2 of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; * * *” Moreover, it conforms to Article III, § 2, cl. 3 of the Constitution, directing that: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” (Accent added.) Congress in ratifying the Agreement has met the command of this section, by declaring that trials of servicemen stationed abroad be conducted where United States military authorities are present to exercise jurisdiction. The court-martial’s jurisdiction is not subordinate to the Act of Congress, 18 U.S.C. § 3238, passed pursuant to Article III, stating that: “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.” (Accent added.) This statute does not clothe the serviceman with any vested privilege. In our view, Article VII of the Agreement, providing court-martial trial for offenses committed abroad, is not incompatible with the statute. The treaty-making authority evidently designed Article VII to meet" }, { "docid": "18732676", "title": "", "text": "States provides that “the Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” Congress has implemented the first clause by various statutory provisions addressing situations in which a crime involves more than one district. The general provision is 18 U.S.C.A. § 3237(a), authorizing prosecution in any district in which an offense “was begun, continued, or completed.” The second clause was implemented by the predecessors of what is now § 3238. As revised and enacted into positive law in 1948, it reads: § 3238. Offenses not committed in any district. The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. The 1948 revision inserted the words “begun or” in the first line of the section. The Revisor’s Note says those words were inserted “to clarify the scope of this section and section 3237 of this title.” This leads the United States to contend that § 3238 is now a continuing offense statute comparable to § 3237(a) and that venue may be founded upon it if the offense was begun abroad even though it may have involved substantial activity in one or more districts within the jurisdiction of the United States. The defendants, on the other hand, taking their cue from the section’s title, insist that venue may not be founded upon § 3238 if the offenses involved" }, { "docid": "3296222", "title": "", "text": "alleged that the county agencies were the targets of the conspiracy rather than the United States. But, in rejecting the defendant’s claim that the count should be dismissed for duplicity, the court stated in a footnote, in a manner persuasive here, that: \"While it is true the courts have interpreted the \"defraud the United States” and the \"commit any offense” clauses of § 371 as separate offenses (citations omitted), it is well established that a single conspiracy count may properly allege multiple objectives (citation omitted). The Supreme Court stated in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), that the allegation in a single count of a conspiracy to commit several crimes does not render the count duplicitous, for '[t]he conspiracy is the crime and that is one, however diverse its objectives.' (citations omitted). Count I alleges a single conspiracy in violation of § 371, with two separate objects, and is not duplicitous.” Id. at 1578 n. 8. . Count Two charges five defendants and claims that while on the high seas, during a six day period in February 1999, the defendants knowingly discharged and caused to be discharged approximately 442 metric tons of diesel-contaminated wheat and diesel fuel into the sea without use of an oil discharge monitoring and control system. It further charges that Philip J. Hitchens, a named defendant, with being a resident of the Southern District of Florida. . Title 18, U.S.C. § 3238 [Offense not committed in any district] states: “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; bout if such offender or offenders are not so arrested or brought into any district, an indictment may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or" }, { "docid": "316407", "title": "", "text": "and circumspection, of a lawful act which might produce death. (b) Within the - special maritime and territorial jurisdiction of the United States, Whoever is guilty of voluntary manslaughter, shall be imprisoned not more than ten years; Whoever is guilty of involuntary manslaughter, shall be fined not more than $1,000 or imprisoned not more than three years, or both. . See e. g., 42 Cong.Rec. 590, 1186 (1909) (remarks of Senator Heyburn and Congressman Sherley). . 18 U.S.C. § 3238 provides: The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. . See Orfield, Venue in Federal Criminal Cases, 17 U.Pitt.L.Rev. 375, 393-398 (1956). . The following colloquy between counsel for Erdos and the district judge demonstrates agreement that Erdos’s movements after his arrival at Dulles were not restrained. THE COURT: [T]hey claim when he landed he was never in custody, that they did give a summons, just like a parking ticket, to appear on a certain clay, but he was not arrested, he was free to go where he wanted to. MR. MeDANIELS : That is correct. THE COURT: And he did go where he wanted to. MR. MeDANIELS: That is correct. . See Proposed Rules of Evidence for United States Courts and Magistrates, R. 803(18), 50 F.R.D. 183, 302 (1972); 0 \"VVigmore on Evidence §§ 1090-1700 (3d ed. 1940). . 28 U.S.C. § 2111 provides : On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of" }, { "docid": "11730558", "title": "", "text": "count could go to the jury. The district court rejected the defendant’s argument that the mail fraud count of the indictment failed to state an offense under the mail fraud statute. The Second Circuit, in reversing the district court’s order directing the government to select one particular mailing, refused to consider defendant’s argument that the indictment failed to state an offense. As the Second Circuit reasoned: [The district court] order obliging the Government to elect a single mailing permitted [the mail fraud count] to go to the jury, albeit with a drastic limitation on the number of mailings that could constitute the offense of mail fraud. Defendant’s contention that [the mail fraud count] does not state an offense seeks a total dismissal of the count. 646 F.2d at 734 (citation omitted). Thus, in Margiotta, the defendant was seeking to obtain more relief than that granted by the district court. Here, as noted above, Hil-ger is simply trying to defend the relief he has already obtained — the dismissal of the indictment. Turning to the merits of the venue question, we agree with Hilger that the Northern District of California was not a proper venue under 18 U.S.C. § 3238 (1982), the federal venue provision which governs trial of offenses, such as this one, which are begun or committed on the high seas. Section 3238 provides: The trial of all offenses begun or committed on the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any of two or more joint offenders, is arrested or first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last-known residence of the offender or any of two or more joint offenders, or if no such residence is known, the indictment may be filed in the District of Columbia. In the instant case, an indictment was filed in the Northern District of California on October 30, 1987 and Hilger was arrested" }, { "docid": "20462317", "title": "", "text": "and district wherein the crime shall have been committed.” U.S. Const, amend. VI. Article III also states, however, that when a crime is “not committed within any State, the Trial shall be at such Place ... as the Congress may by Law have directed.” U.S. Const, art. Ill, § 2, cl. 3. Accordingly, Congress enacted 18 U.S.C. § 3238, which states: The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender ... is arrested or first brought; but if such offender [is] not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender ... or if no such residence is known the indictment or information may be filed in the District of Columbia. 18 U.S.C. § 3238. It has been observed that “this statute permits the government to handpick its forum in the case of a person first found overseas, by picking the district to which it will return him.” 2 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 304 (4th ed. 2016). Neither party disputes that section 3238 applies here. Since Han was never formally arrested in American Samoa, the question for the court to decide in ruling on the Venue Motion is whether Han was “first brought” to Hawaii under the facts and circumstances present here. Importantly, the Government bears the burden of establishing proper venue in a criminal action. See United States v. Hong Vo, 978 F.Supp.2d 49, 62 (D.D.C.2013) (citing United States v. Kwong-Wah, 924 F.2d 298, 301 (D.C.Cir.1991)). III. ANALYSIS a. The Definition Of “First Brought” In Section 3238 If Han was, in fact, “first brought” to Hawaii, then venue is appropriate there under the first prong of the statute. 18 U.S.C. § 3238. But if Han was not “first brought” to Hawaii, the first prong of the statute does not apply, nor does the second prong of the statute, as Han has" }, { "docid": "11730559", "title": "", "text": "of the venue question, we agree with Hilger that the Northern District of California was not a proper venue under 18 U.S.C. § 3238 (1982), the federal venue provision which governs trial of offenses, such as this one, which are begun or committed on the high seas. Section 3238 provides: The trial of all offenses begun or committed on the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any of two or more joint offenders, is arrested or first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last-known residence of the offender or any of two or more joint offenders, or if no such residence is known, the indictment may be filed in the District of Columbia. In the instant case, an indictment was filed in the Northern District of California on October 30, 1987 and Hilger was arrested in that district after he appeared there in compliance with a summons issued after the indictment was filed. The government argues that venue was proper in Northern California under the first clause of § 3238 (the clause before the semicolon) because the Northern District of California was the place where Hilger was “arrested or first brought.” This argument is unconvincing. Hilger was arrested in the Northern District of California only because he was responding to a summons. Hilger had no choice but to come to the Northern District to answer the summons, which had been issued pursuant to the indictment filed in Northern California. To determine whether this indictment was proper in Northern California, we must look to the second clause of § 3238, which allows the government to indict in the district of the last-known residence of the offender, or if no residence is known, in the District of Columbia. Here, Hilger’s residence was known to the government to be in Massachusetts. Therefore, the indictment in the Northern District of California was improper. This" }, { "docid": "21916526", "title": "", "text": "or imprisoned not more than five years, or both. . 18 U.S.C. § 2314 provides, in pertinent part: Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, •converted or taken by fraud.... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. . The government argues that defendant transported “money” or, in the alternative, that he transported “securities.” The court charged the jury that the transfers of funds fell “within one or more of the categories of securities or moneys.” Since defense counsel stated explicitly that he had “no exceptions to the charge,” we do not decide whether the transfers here were of one or the other or of both. . 18 U.S.C. § 3238 provides: Offenses not committed in any district The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia." }, { "docid": "5617976", "title": "", "text": "of the vessel’s hold did not violate any of Williams’ rights. AFFIRMED. . The Convention on the High Seas, 450 U.N. T.S. 82, 13 UST 2312, T.I.A.S. No. 5200, is a codification of international law, and a treaty that purports to be binding upon all signatories. It prohibits the boarding of a foreign merchant ship on the high seas by a warship unless there are reasonable grounds for suspecting that the ship is engaged in piracy, slave trade, or, although flying a foreign flag or refusing to show its flag, is of the same nationality as the warship. Article 22, Convention on the High Seas. As in United States v. Cadena, 585 F.2d 1252, 1260 (5 Cir. 1978), Panama is not a signatory to this convention. But even if Panama were a party to this convention, we believe that Panama’s specific approval of the boarding would divest those on board of any protection under the Treaty. We do not think that the Convention was meant to protect the privacy of those on board but rather the Treaty is a means to protect the national interest implicit in freedom of the seas — an interest that the United States has held dear throughout its history. . 18 U.S.C. § 3238. Offenses not committed in any district The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. . 18 U.S.C. § 3237. Offenses begun in one district and completed in another fa) Except as otherwise expressly provided by enactment of Congress, any" }, { "docid": "13050522", "title": "", "text": ". Section 1512(b) provides that it is a criminal offense to corruptly persuade[ ] another person, or attempt ] to do so, or engage[ ] in misleading conduct toward another person, with intent to ... influence, delay, or prevent the testimony of any person in an official proceeding ... [or] hinder, delay, or prevent the communication to a law enforcement offi cer or judge of the United States of information relating to the commission or possible commission of a federal offense. 18 U.S.C. § 1512(b). . Section 3238 provides: The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one or two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. 18 U.S.C. § 3238." }, { "docid": "11730561", "title": "", "text": "holding is consistent with this court’s earlier interpretations of § 3238. In United States v. Layton, 855 F.2d 1388 (9th Cir.1988), we held that the two clauses of § 3238 should be read in the disjunctive, noting that there are two ways of initiating criminal proceedings: [T]rial is proper in the district where the offender is first brought, or in the district of his last known residence if an indictment is filed before the offender is first brought into any district. 855 F.2d at 1410 (emphasis in original). Here, an indictment was filed before Hilger was “brought” (meaning first brought into a jurisdiction while in custody, see United States v. Catino, 735 F.2d 718, 724 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984)) into any district, and the indictment was not filed in the district of Hilger’s last known residence. The government relies upon United States v. Ross, 439 F.2d 1355 (9th Cir.1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 686, 30 L.Ed.2d 661 (1972) to support its contention that venue was proper in the Northern District of California. The government’s reliance is once again misplaced. In Ross, we found Northern California to be a proper venue because that district was the residence of one of the defendants. 439 F.2d at 1359. Having determined that Northern California was not a proper venue under § 3238, we now hold that dismissal of the indictment is required. When venue is improperly laid in a criminal case, dismissal is the appropriate remedy because a district court has no power to transfer such a case to a proper venue. 8A Moore’s Federal Practice, Rule of Criminal Procedure, ¶ 21.02 (2d ed. 1987); United States v. Swann, 441 F.2d 1053, 1054 (D.C.Cir.1971). The judgment of the district court dismissing the indictment is AFFIRMED. . Section 1115 provides in relevant part: “Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed ... shall be fined not more than" }, { "docid": "13050521", "title": "", "text": "v. Thomas, 896 F.2d 589, 591 (D.C.Cir.1990). The credit union was in fact placed in conservatorship and the preparer of the substantive part of the report, i.e., the Confidential Statement of Grounds for Conservatorship, testified at trial. Gurr's further claim that factual findings in public reports under Fed. R. Evid. 803(8)(C) are admissible only against the government in criminal cases appears only in his reply brief and is therefore waived, see United States v. Taylor, 339 F.3d 973, 977 (D.C.Cir.2003); in any event, any error was harmless because the preparer of the report and the persons upon whom he relied testified and were subject to cross-examination at trial. See United States v. Davis, 181 F.3d 147, 149-50 (D.C.Cir.1999). . Section 657 provides that it is a criminal offense for any person who being an officer, agent or employee of or connected in any capacity with [an insured credit institution,] ... embezzles, abstracts, purloins or willfully misapplies ... [funds of that institution] ... or [funds] pledged or otherwise entrusted to its care. 18 U.S.C. § 657. . Section 1512(b) provides that it is a criminal offense to corruptly persuade[ ] another person, or attempt ] to do so, or engage[ ] in misleading conduct toward another person, with intent to ... influence, delay, or prevent the testimony of any person in an official proceeding ... [or] hinder, delay, or prevent the communication to a law enforcement offi cer or judge of the United States of information relating to the commission or possible commission of a federal offense. 18 U.S.C. § 1512(b). . Section 3238 provides: The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one or" }, { "docid": "6948951", "title": "", "text": "contentions of the petitioner. The petition is denied. . Section 3237(b) “Notwithstanding subsection (a), where an offense involves use of the mails and is an offense described in section 7201 or 7206 (1), (2), or (5) of the Internal Revenue Code of 1954 (whether or not the offense is also described in another provision of law), nnd prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed: Provided, That the motion is filed within twenty days after arraignment of the defendant upon indictment or information. As amended Aug. 6, 1958, Pub.L. 85-595, 72 Stat. 512.” . Section 3238 “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. As amended May 23, 1963, Pub.L. 88-27, 77 Stat. 48.” . Buie 21 (a) and (b) “(a) For Prejudice in the District or Division. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division if the court is satisfied that there exists in the district or division where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that district or division.” “(b) Offense Committed in Two of More Districts or Divisions. The court upon motion of the defendant shall transfer" }, { "docid": "11730560", "title": "", "text": "in that district after he appeared there in compliance with a summons issued after the indictment was filed. The government argues that venue was proper in Northern California under the first clause of § 3238 (the clause before the semicolon) because the Northern District of California was the place where Hilger was “arrested or first brought.” This argument is unconvincing. Hilger was arrested in the Northern District of California only because he was responding to a summons. Hilger had no choice but to come to the Northern District to answer the summons, which had been issued pursuant to the indictment filed in Northern California. To determine whether this indictment was proper in Northern California, we must look to the second clause of § 3238, which allows the government to indict in the district of the last-known residence of the offender, or if no residence is known, in the District of Columbia. Here, Hilger’s residence was known to the government to be in Massachusetts. Therefore, the indictment in the Northern District of California was improper. This holding is consistent with this court’s earlier interpretations of § 3238. In United States v. Layton, 855 F.2d 1388 (9th Cir.1988), we held that the two clauses of § 3238 should be read in the disjunctive, noting that there are two ways of initiating criminal proceedings: [T]rial is proper in the district where the offender is first brought, or in the district of his last known residence if an indictment is filed before the offender is first brought into any district. 855 F.2d at 1410 (emphasis in original). Here, an indictment was filed before Hilger was “brought” (meaning first brought into a jurisdiction while in custody, see United States v. Catino, 735 F.2d 718, 724 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984)) into any district, and the indictment was not filed in the district of Hilger’s last known residence. The government relies upon United States v. Ross, 439 F.2d 1355 (9th Cir.1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 686, 30 L.Ed.2d 661 (1972) to support its contention" } ]

[ { "docid": "10186227", "title": "", "text": "bankruptcy petition. American General and First Family do not contest this value. The debtor alleges that the third mortgage of American General and the fourth mortgage of First Family are totally unsecured because the value of the homestead is less than the balance owed on the first and second mortgages. The debtor also alleges that at the time the third and fourth mortgages were executed, there was no equity in the real property to which the liens/mortgages could have attached. In 1993, the United States Supreme Court held in the case of Nobelman v. American Sav. Bank, — U.S.-, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), that a home mortgage could not be bifurcated under Chapter 13 because § 1322(b)(2) says that a Chapter 13 plan may not modify a claim that is “secured only by a security interest in real property that is the debtor’s principal residence.” The debtor argues that Nobelman is not applicable to this matter, and cites the case of In re Woodhouse, 172 B.R. 1 (Bkrtcy. D.R.I.1994). In Woodhouse, the District Court of Rhode Island held that Chapter 13 debtors were allowed to “strip off’ totally unsecured junior mortgage on their principal residence because the value of the residence was less than the balance owed on the first mortgage. The court reasoned that the mortgagee would be entitled to the protection of § 1322(b)(2) only if it retained at least some security in the property, after satisfaction of the first mortgage. Woodhouse, at 2. A literal reading of § 1322(b)(2) excludes a mortgagee whose interest in the homestead is zero. See also In re Sette, 164 B.R. 453 (Bkrtcy.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bkrtcy.E.D.Ky.1993); In re Moncrief, 163 B.R. 492 (Bkrtcy.E.D.Ky.1993); In re Hornes, 160 B.R. 709 (Bkrtcy.D.Conn.1993). In the present case, the debtor valued her home at $49,900.00, and no other evidence was presented regarding valuation. Therefore, the Court finds that the value of the debtor’s home is $49,900. The first mortgage of $34,000.00 is totally secured, and the second mortgage of approximately $81,000.00 is secured in the amount of $15,900.00. Because" } ]

[ { "docid": "12621365", "title": "", "text": "on the debtor’s principal residence. More specifically, the Court held that the term “claim” in the “other than ...” clause of Section 1322(b)(2) did not refer back to the term “secured claims” in the preceding clause, but rather stood on its own and its definition encompassed both the secured and unsecured components of a partially secured creditor’s claim. Id. at 330-31, 113 S.Ct. at 2111. The Court did not specifically address the issue of a creditor in Green Tree’s position, 1.e. a creditor that is totally unsecured but holds a lien in the debtor’s principal residence. The vast majority of reported cases decided after Nobelman that have specifically addressed the issue have held that a creditor in Green Tree’s position is not protected by § 1322(b)(2)’s anti-modification provision, and that its rights may be modified by a Chapter 13 plan. See, Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993). See, also 5 LawRence P. King, et al., Collier on Bankruptcy ¶ 1322.06, at 1322-18 (15th ed. 1996) (“The Nobelman opinion strongly suggests, however, that if a lien is completely underse-cured, there would be a different result.”). But see, In re Nevería, 194 B.R. 547 (Bankr. W.D.N.Y.1996) (The right of a creditor holding a lien on the debtor’s principal residence cannot be modified in a Chapter 13 plan, even if wholly unsecured). In addition, in a case prior to Nobelman, Judge John Mina-han, a bankruptcy judge in this district, held that while a partially secured creditor secured only by a lien in the debtor’s principal residence" }, { "docid": "8085123", "title": "", "text": "The Nobelman court reasoned that the debtor could not bifurcate a creditor’s claim into a secured claim and an unsecured claim without modifying the creditor’s contract rights and running afoul of section 1322(b)(2). 508 U.S. at 331, 113 S.Ct. at 2111. Nobel-man focused on the creditor’s rights as a secured creditor under the note that applied to the overall claim. Id. Bifurcating the creditor’s claim into an unsecured claim and secured claim would require the debtor to propose a new schedule of monthly payments to pay the secured claim, a new loan term and a new interest rate, all modifications which section 1322(b)(2) prohibits. Id. “Nobelman focused on the rights afforded a mortgagee under state law and applicable loan documents only after noting that the creditor before it was the holder of a ‘secured claim’ ...” In re Homes, 160 B.R. 709, 715 (Bankr.D.Conn.1993). The Nobelman court’s concern does not apply here when the creditor’s claim is totally unsecured. Where the estate’s interest in property is zero, the claim under section 506(a) is completely unsecured and is not entitled to the protection of section 1322(b)(2). See, In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Kidd, 161 B.R. 769, 771 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); and In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). Unsecured creditor’s rights are frequently modified under the Bankruptcy Code. There is neither a logical or rational basis for a creditor holding a completely unsecured claim to be protected from claim modification in a bankruptcy case simply because the creditor had obtained a lien on the homestead prepetition. Plouffe, 157 B.R. at 200 (footnote omitted). The fact that CCC holds a recorded mortgage lien does not conclusively determine its rights under the Bankruptcy Code. The code does not generally classify creditors based on the existence of a piece of paper purporting to give a creditor rights in specified collateral, but rather on whether a creditor" }, { "docid": "10562926", "title": "", "text": "creditor would have outside bankruptcy, not just its rights in the chapter 13 case as holder of an allowed secured claim. The debtors argued, in effect, that “a claim secured only by” put a restriction on this definition. It protected only the creditor’s rights in bankruptcy as holder of an allowed secured claim. The Supreme Court disagreed. It held that “a claim secured only by” refers to the entire claim; it does not restrict the protected rights to the rights the creditor has in the chapter 13 case as holder of an allowed secured claim. The Supreme Court’s reasoning disposed of the debtor’s argument that “a claim secured by” put a restriction on the court’s interpretation of “rights.” This reasoning was not absolutely necessary to reach the same overall result, but it served a purpose nevertheless. In this regard, the court observes that courts do not always take the shortest logical route to a decision. Rejecting all the wrong arguments on the simplest grounds can be the most efficient and conservative way of deciding a case. If the Supreme Court intended to make the exception apply to creditors without allowed secured claims, it certainly could have made the point clearly. The steps in Green-tree’s argument reveal that the opinion is not clear at all on this point. Furthermore, during the crucial part of the opinion the Supreme Court left no doubt it was dealing with an undersecured claim and a creditor with an allowed secured claim. Nobelman, 508 U.S. at 330-32,113 S.Ct. at 2111. Greentree is not the holder of an allowed secured claim. Therefore, the portion of § 1322(b)(2) that allows a plan to modify the rights of holders of allowed secured claims is irrelevant to how the plan can deal with Greentree’s claim. Likewise, the home mortgage exception is irrelevant since it is contained within that portion of § 1322(b)(2). The plan can modify Green-tree’s rights as the holder of an unsecured claim. The great majority of reported decisions have reached the same conclusion. In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996);" }, { "docid": "12621366", "title": "", "text": "re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993). See, also 5 LawRence P. King, et al., Collier on Bankruptcy ¶ 1322.06, at 1322-18 (15th ed. 1996) (“The Nobelman opinion strongly suggests, however, that if a lien is completely underse-cured, there would be a different result.”). But see, In re Nevería, 194 B.R. 547 (Bankr. W.D.N.Y.1996) (The right of a creditor holding a lien on the debtor’s principal residence cannot be modified in a Chapter 13 plan, even if wholly unsecured). In addition, in a case prior to Nobelman, Judge John Mina-han, a bankruptcy judge in this district, held that while a partially secured creditor secured only by a lien in the debtor’s principal residence would be protected by the anti-modification provision of § 1322(b)(2), a totally unsecured creditor like Green Tree could have its rights modified by a plan. In re Kaczmarczyk, 107 B.R. 200, 204 (Bankr.D.Neb.1989). The first aspect of Judge Mi-nahan’s opinion is consistent with Nobelman; the second aspect was not overruled by Nobelman. Perhaps the best analysis of this issue in a post-Nobelman case was provided by In re Hornes, 160 B.R. at 709. In that ease, the court found that the term “secured claim” can be construed in two ways. First, it may be interpreted in the literal sense, that is, a claim that is secured by a lien on collateral. Second, it may be interpreted in the “code” sense, that is, a claim is secured to the extent that there exists some equity in the collateral that secures the claim. Id. at 711-12. The court went on to find that the “other than ...” clause of § 1322(b)(2), as held by Nobel-man, refers to a secured claim in the literal sense, but that the" }, { "docid": "10237331", "title": "", "text": "unsecured claims clause, the rights of a holder of only an unsecured claim ... are not protected from modification.” In re Hornes, 160 B.R. 709, 711 (Bankr.D.Conn.1993). Thus, Debtor’s attempt to modify the rights of the Creditor in this case is not prohibited by Nobelman and is instead consistent with the plain language of § 1322(b)(2). B. Post-Nobelman Bankruptcy Court Decisions This Court is aware of a plethora of post-Nobelman bankruptcy court decisions which address the same issue presented in this case and which reach the same result. Without describing in detail the facts and analysis of each decision, this Court points to these cases as support for the reasoning adopted herein. Sette v. Bello (In re Sette), 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994) (“since there is no equity or value in the collateral to which the ... second mortgage may attach, the ... claim may be treated as a general unsecured claim”); In re Lee, 161 B.R. 271, 274 (Bankr.W.D.Okla.1993) (Nobelman applies to all un-dersecured, as opposed to wholly unsecured mortgages); In re Williams, 161 B.R. 27, 30 (Bankr.E.D.Ky.1993) (some portion of mortgagee’s claim must be secured under § 506(a) before the mortgagee is entitled to retain its rights under state law); In re Hornes, 160 B.R. 709, 716 (Bankr.D.Conn.1993) (for mortgagee’s rights to be protected under § 1322(b)(2), it must first qualify as the holder of a secured claim under § 506(a)); In re Plouffe, 157 B.R. 198, 199 (Bankr.D.Conn.1993) (“Nobelman requires that the mortgage holder have some equity in the homestead to be entitled to the status of a secured claim holder, with nonmodifiable rights”). CONCLUSION For the foregoing reasons it is ORDERED that the Debtor’s Objection to the Claim of Green Tree Financial Corporation is SUSTAINED." }, { "docid": "19327900", "title": "", "text": "§ 1322(b)(2). The judgment of the District Court will be reversed. The case will be remanded to the District Court for it to remand the matter to the Bankruptcy Court for further proceedings consistent with this opinion. Costs taxed against appellee. . Note that the phrase \"wholly unsecured” in this context carries a specific meaning. While the mortgage holder of course initially obtained a security interest in the debtor’s residence and in that sense has a secured claim, the second mortgage is now deemed wholly unsecured in the sense that the value of the debtor’s residence is less than the amount due to a first or senior mortgage holder, leaving no remaining value for the second mortgage. Thus, at a foreclosure sale the holder of the wholly unsecured second mortgage would receive nothing from the direct proceeds of the sale. . See, e.g., In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); In re Johnson, 226 B.R. 364 (D.Md. 1998); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich.1998); In re Reeves, 221 B.R. 756 (Bankr.C.D.Ill. 1998); In re Smith, 215 B.R. 716 (Bankr. W.D.Tenn.1998); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Cervel-li, 213 B.R. 900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa. 1994); In re Mitchell, 111 B.R. 900 (Bankr. E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Ploujfe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993). . See, e.g., In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa.1999); In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998); In re Lewandow-ski, 219 B.R. 99 (Bankr.W.D.Pa.1998);" }, { "docid": "8085124", "title": "", "text": "and is not entitled to the protection of section 1322(b)(2). See, In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Kidd, 161 B.R. 769, 771 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); and In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). Unsecured creditor’s rights are frequently modified under the Bankruptcy Code. There is neither a logical or rational basis for a creditor holding a completely unsecured claim to be protected from claim modification in a bankruptcy case simply because the creditor had obtained a lien on the homestead prepetition. Plouffe, 157 B.R. at 200 (footnote omitted). The fact that CCC holds a recorded mortgage lien does not conclusively determine its rights under the Bankruptcy Code. The code does not generally classify creditors based on the existence of a piece of paper purporting to give a creditor rights in specified collateral, but rather on whether a creditor actually holds a claim supported by valuable estate property. Hornes, 160 B.R. at 715. CCC does not have an allowed secured claim under section 506(a) and is not entitled to protection under section 1322(b)(2). IY. CONCLUSION In order to be afforded the protections of section 1322(b)(2) the creditor must be the holder of a claim which is at least partially secured. Nobelman, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). This court holds that the term “secured claim” as used in section 1322(b)(2) has the same meaning as the term “secured claim” in section 506(a). Unless there is some equity to which the creditor’s lien attaches, there is no allowed secured claim and no entitlement to the protections against modification contained in section 1322(b)(2). A chapter 13 debtor may “strip-off” a lien on his or her primary residence under the plan or under section 506(d) when the lienholder’s interest is totally unsecured. For the foregoing reasons this court grants the Debtors’ motion to void the lien of CCC. This Memorandum Decision constitutes findings" }, { "docid": "22580038", "title": "", "text": "entire lien is removed, as opposed to a lien \"strip down”. In the latter instance, a partially secured lien is bifurcated and only the unsecured portion is removed, or \"stripped down”. In re Woodhouse, 172 B.R. 1, n. 1 (Bankr.D.R.I.1994). .Thrift elected not to oppose the relief sought by Debtors. . (b) Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims. 11 U.S.C. § 1322(b)(2). . (a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff 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, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. 11 U.S.C. § 506(a). . In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); Matter of Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993). . See also In re Hornes, 160 B.R. at 716, In re Lee, 161 B.R. at 272-73; In re Moncrief, 163 B.R. at 494; In re Kidd, 161 B.R. at 770-71." }, { "docid": "10562927", "title": "", "text": "case. If the Supreme Court intended to make the exception apply to creditors without allowed secured claims, it certainly could have made the point clearly. The steps in Green-tree’s argument reveal that the opinion is not clear at all on this point. Furthermore, during the crucial part of the opinion the Supreme Court left no doubt it was dealing with an undersecured claim and a creditor with an allowed secured claim. Nobelman, 508 U.S. at 330-32,113 S.Ct. at 2111. Greentree is not the holder of an allowed secured claim. Therefore, the portion of § 1322(b)(2) that allows a plan to modify the rights of holders of allowed secured claims is irrelevant to how the plan can deal with Greentree’s claim. Likewise, the home mortgage exception is irrelevant since it is contained within that portion of § 1322(b)(2). The plan can modify Green-tree’s rights as the holder of an unsecured claim. The great majority of reported decisions have reached the same conclusion. In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr. D.N.J.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Norwest Financial Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Castellanos v. PNC Bank (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y. 1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). A few have agreed with Greentree’s argument. In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Barnes, 199 B.R. 256 (Bankr.W.D.N.Y.1996); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996). The court realizes that its interpretation of the statute creates a cut-off point that depends on the valuation of the debtor’s home. If the creditor’s claim is barely an allowed secured claim under § 506(a), then" }, { "docid": "11768330", "title": "", "text": "claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff 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, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. Since the estate’s interest in the property is entirely encumbered by the first mortgagee, the Defendants’ mortgages are, by statute, unsecured claims. 11 U.S.C. § 1322(b)(2) specifically allows for the modification of the rights of holders of unsecured claims without exception to residential mortgage lendings. Therefore, neither the bankruptcy Code nor Nobelman provide an impediment to mortgage modification. We will thus follow the increasingly long line of eases that are in accord with this position and avoid, in their entirety, the mortgage liens of the Defendants. . The term “strip off” has been utilized to describe litigation attempting to remove a totally unsecured junior mortgage from a debtor’s principal residence. In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994). See also Daniel C. Fleming and Marianne McConnell, The Treatment Of Residential Mortgages In Chapter 13 After Nobelman, 2 Am.Bankr.Inst.L.Rev. 147 (1994). . In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Ct.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Ct.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okl.1993); In re Brown, 1993 WL 544385 (Bankr.E.D.N.C.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993). See also Comments in In re Gelletich, 167 B.R. 370 (Bankr.E.D.Pa.1994)." }, { "docid": "23183065", "title": "", "text": "In re Lam, 211 B.R. 36 (9th Cir. BAP 1997); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); Scheuer v. Marine Midland Bank (In re Scheuer), 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr.D.N.J.1996); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); Sette v. Bello (In re Sette), 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993). . See, e.g., In re Lane, 248 B.R. 534 (Bankr.E.D.Tenn.2000); In re Enriquez, 244 B.R. 156 (Bankr.S.D.Cal.2000); In re Abruzzo, 245 B.R. 201 (Bankr.E.D.Pa.1999); Ortiz v. Household Fin. Corp. (In re Ortiz), 241 B.R. 460 (Bankr.E.D.Cal.1999); In re Perkins, 237 B.R. 658 (Bankr.S.D.Ohio 1999); Boehmer v. ESSEX (In re Boehmer), 240 B.R. 837 (Bankr.E.D.Pa.1999); In re Perry, 235 B.R. 603 (S.D.Tex.1999); Cupp v. Associates Consumer Discount Co. (In re Cupp), 229 B.R. 662 (Bankr.E.D.Pa.1999); American Gen. Fin., Inc. v. Dickerson, 229 B.R. 539 (M.D.Ga.1999); In re Diggs, 228 B.R. 611 (Bankr.W.D.La.1999); Tanner v. Firstplus Fin., Inc. (In re Tanner), 223 B.R. 379 (Bankr.M.D.Fla.1998); Lewandowski v. U.S. Department of Housing and Urban Development (In re Lewandowski), 219 B.R. 99 (Bankr.W.D.Pa.1998); In re Shandrew, 210 B.R. 829 (Bankr.E.D.Cal.1997); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); Fraize v. Beneficial Mortgage Corp. of N.H. (In re Fraize), 208 B.R. 311, (Bankr.D.N.H.1997); Barnes v. American Gen. Fin. (In re Barnes), 207 B.R. 588" }, { "docid": "19327901", "title": "", "text": "221 B.R. 756 (Bankr.C.D.Ill. 1998); In re Smith, 215 B.R. 716 (Bankr. W.D.Tenn.1998); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Cervel-li, 213 B.R. 900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa. 1994); In re Mitchell, 111 B.R. 900 (Bankr. E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Ploujfe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993). . See, e.g., In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa.1999); In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998); In re Lewandow-ski, 219 B.R. 99 (Bankr.W.D.Pa.1998); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Mattson, 210 B.R. 157 (Bankr.D.Minn.1997); In re Shandrew, 210 B.R. 829 (Bankr.E.D.Cal.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Barnes, 207 B.R. 588 (Bankr.N.D.Ill.1997); In re Nevería, 194 B.R. 547 (Bkrtcy.W.D.N.Y.1996); In re Barnes, 199 B.R. 256 (Bankr.S.D.N.Y.1996); In rejones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Witt, 199 B.R. 890 (W.D.Va.1996). . Master Financial asserts in its brief that wholly unsecured mortgages are regularly bought and sold, and therefore a wholly unsecured mortgage has value and is still subject to the antimodification clause. Whatever value a wholly unsecured mortgage might have in the market Master Financial has in mind, that value has no bearing on the inquiry under § 506(a). Section 506(a) compares the value of the collateral against the \"creditor’s interest in the estate's interest in [the collateral].” Master Financial’s position would only make sense if the creditor was entitled to collect from the debtor not only the money owed on the debt but also the price that the mortgage might be sold" }, { "docid": "10562928", "title": "", "text": "In re Libby, 200 B.R. 562 (Bankr. D.N.J.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Norwest Financial Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Castellanos v. PNC Bank (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y. 1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). A few have agreed with Greentree’s argument. In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Barnes, 199 B.R. 256 (Bankr.W.D.N.Y.1996); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996). The court realizes that its interpretation of the statute creates a cut-off point that depends on the valuation of the debtor’s home. If the creditor’s claim is barely an allowed secured claim under § 506(a), then the exception protects the creditor’s rights from modification. For example, the creditor’s allowed secured claim may be $500 out of a $10,000 claim; the exception will apply. On the other hand, if the higher priority liens barely exceed the value of the property, then the creditor’s rights will not be protected by the home mortgage exception and can be modified. For example, the higher priority liens may secure debts totaling $50,000 on property valued at $49,500. The creditor’s lower priority mortgage will not give it any allowed secured claim, and as a result, its entire claim will not be protected by the home mortgage exception. The law sometimes uses cutoff points such as this even if they appear to be unfair. See, e.g., 11 U.S.C. §§ 109(e), 507(a)(3)-(6), 522(d), 523(a)(2)(C) & 547(c)(8). The structure of § 1322(b)(2), however, does not support the conclusion that the exception applies when the claim-holder does not have an allowed secured claim. The court will enter an order overruling the Greentree objection to confirmation and a separate order confirming the" }, { "docid": "15164127", "title": "", "text": "(S.D.Ohio 1995) (same); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Bivvins, 216 B.R. 622 (Bankr. E.D.Tenn.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993). But see, e.g., In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998) (denying strip off); In re Lewandowski, 219 B.R. 99 (Bankr.W.D.Pa. 1998) (same); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996); In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996). The split in decisions arises from different interpretations of Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (superseded in part by statute). In Nobelman, the debtor’s home, worth $23,500, was encumbered with a single homestead lien of $71,335. Id. at 326, 113 S.Ct. at 2108. The debtor proposed to bifurcate the lien into a secured claim of $23,500, and an unsecured claim of $47,835. Id. The debtor argued that § 1322(b)(2) protected only that part of the claim defined as secured under § 506(a). The debtor further asserted that the unsecured claim component could be stripped down. Id. at 328,113 S.Ct. at 2109. The creditor argued that bifurcation would modify its rights in violation of § 1322(b)(2). Id. The Court held that “ § 1322(b)(2) prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an un-dersecured homestead mortgage to the fair market value of the mortgaged residence.” Id. at 325-26,113 S.Ct. at 2108. First, the Nobelman Court held that when a creditor’s lien is at least partially secured, § 506(a) does not operate to eliminate the creditor’s rights in the unsecured claim component. Id. at 328-29, 113 S.Ct. at 2109-10. The debtors had asserted that a bifurcation and strip down did not modify a creditor’s rights because, in effect, the creditor had no rights in the unsecured claim component. However, the" }, { "docid": "17717433", "title": "", "text": "(d)); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994) (applying the test under § 506(a) to determine whether the protection of the anti-modification clause applies and then allowing modification of unsecured claim under § 1322(b)(2)); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993) (holding that § 1322(b)(2) does not preclude modification by a Chapter 13 plan of the ‘rights’ of holders of unsecured claims, but rather restricts modification of the ‘rights’ of holders of secured claims secured only by a security interest in real property that is the debtor’s principal residence); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994) (allowing strip off of unsecured claim citing a “plethora” of cases post-Nobelman, reaching the same result); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga. 1995) (claim must be secured in some way by the residence to be entitled to protection against modification); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995) (claims of third and fourth mortgagees could properly be treated as unsecured where value of Chapter 13 debtor’s residence was less than balance owed on first and second mortgages); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993) (determining that wholly unsecured lien “differs materially” in character from the mortgage lien involved in Nobelman, and allows strip off); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994) (adopting majority view, citing cases arising “Phoenix like and unanimously, from the ashes of Nobelman ”). It must be noted however, that inherent in the reasoning of these decisions espousing the majority view, is the significant caveat that the rights of a mortgagee, which is the holder of a secured claim in any amount, however slight, may not be modified in any way if that claim is secured only by a security interest in real property that is the Chapter 13 debtor’s principal residence. 211 B.R. 36. The most recent and comprehensive review of this issue is by the United States Bankruptcy Appellate Panel of the Ninth Circuit in In re Lam, 211 B.R. 36, wherein as in the case sub judice, Chapter 13 debtors sought to have a lien on their primary residence “stripped off’ as wholly unsecured. Adopting the majority view," }, { "docid": "15164126", "title": "", "text": "Section 506(a) 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. The issue of the interplay between §§ 506(a) and 1322(b)(2) in the context of completely unsecured junior homestead hens is one of first impression for this Court. Moreover, the issue also has not been directly addressed in any published opinion of the United States Court of Appeals for the Fourth Circuit. The issue has, however, been much debated in bankruptcy court and three district court opinions. The courts have divided on the issue, with the majority deciding that such liens may be stripped off. See, e.g., In re Lam, 211 B.R. 36 (9th Cir. BAP 1997) (allowing strip off); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (same); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Bivvins, 216 B.R. 622 (Bankr. E.D.Tenn.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993). But see, e.g., In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998) (denying strip off); In re Lewandowski, 219 B.R. 99 (Bankr.W.D.Pa. 1998) (same); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996); In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996). The split in decisions arises from different interpretations of Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (superseded in part by statute). In Nobelman, the debtor’s home, worth $23,500, was encumbered with a single homestead lien of $71,335. Id. at 326, 113 S.Ct. at 2108. The debtor proposed to" }, { "docid": "23183064", "title": "", "text": "a split of opinion among our bankruptcy courts. As noted above, Chief Judge Votolato of the United States Bankruptcy Court for the District of Rhode Island has ruled that wholly unsecured mortgages are not entitled to the § 1322(b)(2) protection. In re Woodhouse, 172 B.R. at 3. The United States Bankruptcy Court for the District of New Hampshire has ruled otherwise. Fraize v. Beneficial Mortgage Corp. of N.H. (In re Fraize), 208 B.R. 311, 313 (Bankr.D.N.H.1997). . See, e.g., Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606 (3rd Cir.2000); Western Interstate Bancorp v. Edwards (In re Edwards), 245 B.R. 917 (Bankr.S.D.Ga.2000); In re Baez, 244 B.R. 480 (S.D.Fla.2000); In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); Johnson v. Asset Management Group, LLC, 226 B.R. 364 (D.Md.1998); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich.1998); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); Smith v. First Citizens Bank (In re Smith), 215 B.R. 716 (Bankr.W.D.Tenn.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Lam, 211 B.R. 36 (9th Cir. BAP 1997); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); Scheuer v. Marine Midland Bank (In re Scheuer), 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr.D.N.J.1996); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); Sette v. Bello (In re Sette), 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161" }, { "docid": "4156334", "title": "", "text": "under § 506(a); however, that determination does not necessarily mean that the “rights” the bank enjoys as a mortgagee, which are protected by § 1322(b)(2), are limited by the valuation of its secured claim. 508 U.S. at 329, 113 S.Ct. 2106 (emphasis added). . If we err in our view, we are in good company. See In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); In re Flowers, No. 98-11492, 1999 WL 118022 (Bkrtcy.E.D.Va. Jan.14, 1999); Johnson v. Asset Management Group, LLC (In re Johnson), 226 B.R. 364 (D.Md.1998); In re Yi, 219 B.R. 394 (E.D.Va.1998); Lam v. Investor's Thrift (In re Lam), 211 B.R. 36 (9th Cir. BAP 1997) appeal dismissed, 192 F.3d 1309 (9th Cir.1999); In re Perugini, 234 B.R. 247 (Bankr.D.Conn.1999); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich. 1998); In re Reeves, 221 B.R. 756 (Bankr.C.D.Ill.1998); In re Cerminaro, 220 B.R. 518, 32 Bankr.Ct. Dec. (CRR) 708 (Bankr.N.D.N.Y.1998); In re Biwins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); In re Smith, 215 B.R. 716 (Bankr.W.D.Tenn.1998); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp. (In re Wright), 178 B.R. 703 (E.D.Va. 1995), appeal dismissed without op., 77 F.3d 472 (4th Cir.1996)(unpublished table decision); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); In re Cavaliere, 194 B.R. 7 (Bankr.D.Conn.1996); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Norwest Fin. Ga. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 174 B.R. 900 (Bankr.E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In" }, { "docid": "4156335", "title": "", "text": "900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp. (In re Wright), 178 B.R. 703 (E.D.Va. 1995), appeal dismissed without op., 77 F.3d 472 (4th Cir.1996)(unpublished table decision); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); In re Cavaliere, 194 B.R. 7 (Bankr.D.Conn.1996); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Norwest Fin. Ga. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 174 B.R. 900 (Bankr.E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); see also Howard v. National Westminister Bank (In re Howard), 184 B.R. 644 (Bankr.E.D.N.Y.1995) (wholly unsecured nonconsensual judicial lien may be \"stripped down” in a Chapter 7 case); In re Gray, 182 B.R. 15 (Bankr.W.D.Va.1995) (denial of attorney's fees to secured creditor with no remaining collateral is not a modifi cation); In re Hutchins, 162 B.R. 1014 (Bankr.N.D.Ill.1994) (lender whose lien is eliminated by a foreclosure by the first mortgagee no longer has a security interest protected by § 1322(b)(2)); cf. In re Cardinale, 142 B.R. 42 (Bankr.D.R.I.1992) (pre-Nobelman case). . See In re Perry, 235 B.R. 603 (S.D.Tex.1999); American General Finance, Inc. v. Dickerson, 229 B.R. 539 (M.D.Ga.1999); Green Tree Consumer Discount Co. v. Miller (In re Miller), No. 99-13446DWS, 1999 WL 1052509 (Bkrtcy.E.D.Pa. Nov.5, 1999); In re Cater, 240 B.R. 420 (Bkrtcy.M.D.Ala.1999); In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa. 1999); In re Perkins, 237 B.R. 658 (Bankr.S.D.Ohio 1999); In re Cupp, 229 B.R. 662 (Bankr.E.D.Pa. 1999); In re Diggs," }, { "docid": "17717432", "title": "", "text": "claim.); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993) (in depth analysis parsing the language of § 1322(b)(2) and considering its treatment in light of Nobelman, finding that a Chapter 13 plan could modify the rights of junior mortgagee whose claim was wholly unsecured, mortgagee did not qualify as creditor whose claim was “secured by an interest in property that was debtor’s principal residence,” within meaning of statute); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (allowing strip off under § 506(a), holding that second mortgagees claim does not include secured claim component where value of residence is less than senior mortgage lien); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995) (first District Court decision concluding prohibition against modification applies only when debtor has some equity in residence, after satisfaction of prior liens; prohibition against lien stripping does not apply when creditor’s claim is completely unsecured); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994) (treating entirely unsecured second mortgage lien as general unsecured claim and avoiding lien in its entirety pursuant to 11 U.S.C. 506(a) and (d)); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994) (applying the test under § 506(a) to determine whether the protection of the anti-modification clause applies and then allowing modification of unsecured claim under § 1322(b)(2)); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993) (holding that § 1322(b)(2) does not preclude modification by a Chapter 13 plan of the ‘rights’ of holders of unsecured claims, but rather restricts modification of the ‘rights’ of holders of secured claims secured only by a security interest in real property that is the debtor’s principal residence); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994) (allowing strip off of unsecured claim citing a “plethora” of cases post-Nobelman, reaching the same result); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga. 1995) (claim must be secured in some way by the residence to be entitled to protection against modification); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995) (claims of third and fourth mortgagees could properly be treated as unsecured where value of Chapter 13 debtor’s residence was less than balance owed on first and second mortgages); In re" } ]

[ { "docid": "1626336", "title": "", "text": "to injunctive and declaratory relief. See, e.g., Martens v. Smith Barney, 181 F.R.D. 243, 260 (S.D.N.Y.1998). The consequence of Plaintiffs’ argument is that they could avoid the individualized notice requirements provided in Rule 23(c) for a Rule 23(b)(3) class. In this case, however, the recovery of individualized damages will predominate, and “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort,” is required. See Fed.R.Civ.P. 23(c)(2); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564 (2d Cir.1968) (“[sjubsection (b)(2) was never intended to cover cases ... where the primary claim is for damages, but is only applicable where the relief sought is exclusively or predominantly injunctive or declaratory.”); see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir.1998); Parker v. Time Warner Entertainment Co., 198 F.R.D. 374 (E.D.N.Y.2001); Robinson v. Metro-North Commuter Railroad Co., 197 F.R.D. 85 (S.D.N.Y.2000). Plaintiffs want monetary compensation, to the extent they were not paid minimum wage and overtime. This is not' a Rule 23(b)(2) class. Certifying a Rule 23(b)(3) class is appropriate for an additional reason: to allow members to be fully advised of their rights and options in a notice approved by the court, and thereafter to opt-out of the class. The interplay of the Minimum Wage Act and the Civil Practice Law and Rules makes this procedure important. Those aggrieved by a willful violation of the New York Minimum Wage Act may recover liquidated damages equivalent to twenty-five per cent of unpaid wages found to be due them. N.Y. Lab. L. §§ 198, subd. 1-a, 663. However, they cannot do so as part of a class action. See N.Y.C.P.L.R. 901(b). Hence, those affected must be given an option: to gain the convenience of class membership, or opting-out and suing individually. See Brzychnalski v. Unesco, Inc., 35 F.Supp.2d 351, 353 (S.D.N.Y.1999) (citing Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11, 11 (1st Dept.1998) (“To the extent certain individuals may wish to pursue punitive claims pursuant to Labor Law § 198(l-a), which cannot be maintained in a class action (CPLR 901" } ]

[ { "docid": "8222658", "title": "", "text": "statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measures of recovery created or imposed by statute may not be maintained as a class action.” Section 901(b) of the New York Civil Practice Law & Rules. VW contends that the above statute precludes the VW-named Plaintiffs from seeking exemplary or minimum damages in a class action. Plaintiffs rely on several decisions that have held that the New York restriction is a substantive rule, and therefore applicable under the Erie Doctrine. Plaintiffs do not dispute that the provision at issue prohibits Busch and Vamos from recovering exemplary or minimum damages in a class action. They assert, however, that § 901(b) is procedural and therefore not applicable to class actions brought in federal court under diversity jurisdiction. Plaintiffs rely on Wesley v. John Mullins & Sons, Inc., 444 F.Supp. 117 (E.D.N.Y.1978); In re Oot, 112 B.R. 497 (Bankr.N.D.N.Y.1989); and In re Peters, 90 B.R. 588 (Bankr.N.D.N.Y.1988) to support their position. The Court agrees with VW that the statutory restriction bars Busch and Va-mos from pursuing claims for exemplary damages or a minimum recovery in a class action. “The majority of courts have concluded that § 901(b) is a substantive law which must be applied in the federal forum.” Holster v. Gatco, Inc., 485 F.Supp.2d 179, 185 (E.D.N.Y.2007) (collecting cases); see also Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 466 F.Supp.2d 467, 472-73 (E.D.N.Y.2006) (ruling that § 901(b) is substantive and rejecting the same authorities that Plaintiffs rely on here.). D. Challenges To Count III (“Breach of Express Warranty”): Count III, Plaintiffs breach of express warranty claim, is asserted against each Manufacturer Defendant. Each of them challenge that claim on the same ground— that a plaintiffs express warranty claim fails where that plaintiffs vehicle/OnStar equipment fulfilled the term of the durational warranty before the cutoff of analog service. Each of the Manufacturer Defendants offered an express warranty on the vehicles purchased or leased by Plaintiffs. Although the terms of the express warranty’s" }, { "docid": "9911934", "title": "", "text": "their attorneys migrating toward federal court to obtain the ‘substantial advantages’ of class actions”); Dornberger, 182 F.R.D. at 84 (refusing to certify plaintiffs’ N.Y. Ins. Law. § 4226 claims in light of N.Y. C.P.L.R. § 901(b) because “[i]t would be patently unfair to allow plaintiff an attempt at recovery in federal court for a state law claim that would be barred in state court.”); Dentsply Int’l, Inc., 2001 WL 624807, at *16 (“In order to ensure that the outcome of the litigation at bar will be substantially the same ... the court shall apply N.Y. C.P.L.R. § 901(b), which precludes these New York State residents from maintaining a class action under the Donnelly Act.”). These decisions are entirely consistent with Erie and later Supreme Court decisions with respect to the application of state law in federal courts, which hold that “there is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts ... should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.” Walker, 446 U.S. at 753, 100 S.Ct. 1978. This policy also holds true for cases in which state law claims are asserted via the Court’s pendent jurisdiction. Thus, the bulk of cases to address the applicability of N.Y. C.P.L.R. § 901(b) have decided that the statute is substantive and applies with equal force in federal litigation. Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 94-95 (S.D.N.Y.2001); Dornberger, 182 F.R.D. at 84; In re Relafen Antitrust Litig., 221 F.R.D. at 285-86; Dentsply Int’l, Inc., 2001 WL 624807, at *16; In re Microsoft Corp. Antitrust Litig., 127 F.Supp.2d 702, 727 (D.Md.2001), opinion supplemented by, 2001 WL 137254 (D.Md. Feb. 15, 2001); see also Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 341 n. 83 (S.D.N.Y.2004) (“Although the certification motion is governed by the requirements set forth under Rule 23, section 901(b) is arguably substantive and has been found to apply under similar circumstances by federal courts in this" }, { "docid": "9911922", "title": "", "text": "damages. Compl. ¶¶ 85, 86. In his 2d R & R, Magistrate Judge Maas concluded that N.Y. C.P.L.R. § 901(b) barred certification of plaintiffs’ Donnelly Act claim. Plaintiffs object and argue, in essence, that their Donnelly Act claims should be certified because: (1) the Don-nelly Act — whose legislative history they believe supports the maintenance of class actions — should be interpreted to conform with the Sherman Act; and (2) N.Y. C.P.L.R. § 901(b) does not apply in federal court. These arguments fail because New York law firmly disallows a Donnelly Act class action by private plaintiffs and this law applies with equal force in federal court. 1. N.Y. C.P.L.R. § 901(b) N.Y. C.P.L.R. § 901(b), which sets out the prerequisites for a class action suit, prohibits a class action “to recover a penalty or minimum measure of recovery created or imposed by statute,” unless the statute “specifically authorizes the recovery thereof in a class action.... ” The Donnelly Act provides, in pertinent part, that “any person who shall sustain damages by reason of any violation of this section, shall recover three-fold the actual damages sustained thereby, as well as costs not exceed ing ten thousand dollars, and reasonable attorneys’ fees.” N.Y. Gen. Bus. Law § 340(5) (emphasis supplied). When these two statutes are read together, it is evidence that a class action cannot be maintained under the Donnelly Act. As the First Department explained, “[p]rivate persons are precluded from bringing a class action under the Donnelly Act ... because the treble damages remedy provided for in subsection 5 constitutes a ‘penalty’ within the meaning of CPLR 901(b),” and the Donnelly Act “does not specifically authorize recovery in a class action.... ” Cox v. Microsoft Corp., 290 A.D.2d 206, 737 N.Y.S.2d 1, 2 (1st Dep’t 2002) (“Cox I” ); Asher v. Abbott Labs., 290 A.D.2d 208, 737 N.Y.S.2d 4, 4 (1st Dep’t 2002) (same); accord Giovanniello v. Hispanic Media Group USA, Inc., 4 Misc.3d 440, 780 N.Y.S.2d 720, 722 (2004); Rubin v. Nine West Group, Inc., No. 0763/99, 1999 WL 1425364, at *4-5 (N.Y.Sup. Nov. 3, 1999); Russo & Dubin" }, { "docid": "9911935", "title": "", "text": "judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.” Walker, 446 U.S. at 753, 100 S.Ct. 1978. This policy also holds true for cases in which state law claims are asserted via the Court’s pendent jurisdiction. Thus, the bulk of cases to address the applicability of N.Y. C.P.L.R. § 901(b) have decided that the statute is substantive and applies with equal force in federal litigation. Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 94-95 (S.D.N.Y.2001); Dornberger, 182 F.R.D. at 84; In re Relafen Antitrust Litig., 221 F.R.D. at 285-86; Dentsply Int’l, Inc., 2001 WL 624807, at *16; In re Microsoft Corp. Antitrust Litig., 127 F.Supp.2d 702, 727 (D.Md.2001), opinion supplemented by, 2001 WL 137254 (D.Md. Feb. 15, 2001); see also Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 341 n. 83 (S.D.N.Y.2004) (“Although the certification motion is governed by the requirements set forth under Rule 23, section 901(b) is arguably substantive and has been found to apply under similar circumstances by federal courts in this district.”); but see In re Oot, 112 B.R. 497, 502 (Bkrtcy.N.D.N.Y.1989) (ruling that because N.Y. C.P.L.R. § 901(b) is a proce dural rule, the court was bound to apply Fed.R.Civ.P. 23); In re Peters, 90 B.R. 588, 594 (same). I concur and therefore plaintiffs’ Donnelly Act claims will not be certified. C. N.Y. Gen. Bus. §§ 349, 350 1. The Statutes Plaintiffs’ seventh cause of action alleges violations of N.Y. Gen. Bus. Law §§ 349 and 350, which respectively prohibit “deceptive acts or practices” and “false advertising” “in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” “To state a claim for deceptive practices under either section, a plaintiff must show: (1) that the act, practice or advertisement was consumer-oriented; (2) that the act, practice or advertisement was misleading in a material respect, and (3) that the plaintiff was injured as a result of the deceptive practice, act or advertisement.” Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 525 (S.D.N.Y.2003) (‘Pelman I” ). To aid in the" }, { "docid": "1395597", "title": "", "text": "which “[o]ne or more members of a class may sue or be sued as representative parties,” but makes no reference to the remedies that representative parties may seek. See Fed.R.Civ.P. 23. In addition, Rule 23, like all Federal Rules, must be interpreted “with sensitivity to important state interests and regulatory policies” that may be frustrated by the application of federal procedures. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 n. 7, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Here, C.P.L.R. 901(b) expresses a state interest in avoiding “annihilatory punishment” by discouraging multiple recoveries of statutory penalties. See Lennon v. Philip Morris Cos., Inc., 189 Misc.2d 577, 734 N.Y.S.2d 374, 380 (N.Y.Sup.2001) (quoting Joseph M. McLaughlin, Practice Commentaries, C90L7, N.Y. C.P.L.R. 901(b) (McKinney)). As one commentator explains: “The increased deterrent effect class actions create may intensify the already heightened deterrent effect of a penalty provision, to a point perhaps counter-productive to statutory policies.” Developments in the Law—Class Action, 89 Harv. L.Rev. 1329, 1361 (1976). With regard to statutory policies, the Court considers it significant that “since enacting the Donnelly Act, the New York State Legislature has twice considered the indirect purchasers!”] right to bring suit,” but has adopted “no express language[ ] ... which authorizes the maintenance of a class action.” Lennon, 734 N.Y.S.2d at 381. In light of the text and policies of the provisions, the Court declines to interpret Rule 23 so broadly as to control the remedial issues governed by C.P.L.R. 901(b) and the Donnelly Act. Accordingly, the Court discerns no direct conflict between the state law and the Federal Rule. See United States v. Dentsply Int’l, Inc., Nos. Civ. A. 99-005-SLR, 99-255-SLR, 99-854-SLR, 2001 WL 624807, at *16 (D.Del. Mar. 30, 2001) (distinguishing the scope of Rule 23 from that of C.P.L.R. 901(b)); but cf. Bridgestone/Firestone, 205 F.R.D. at 516, rev’d in part on other grounds sub nom. In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (refusing to apply the reasoning of Dentsply International, and concluding that a Michigan provision limiting class action plaintiffs to those residing or injured in the state conflicts with Rule 23)." }, { "docid": "785263", "title": "", "text": "not warranted. This Court has previously concluded that Federal Rule of Civil Procedure 23 does not conflict with § 901(b), and that under the principles set forth in Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), application of CPLR § 901(b) is appropriate. United States v. Dentsply Int’l, Inc., 2001 WL 624807, *15-16 (D.Del. Mar. 30, 2001) (Robinson, C.J.). The Court finds no reason to depart from the rationale in Dentsply. As Class Plaintiffs recognize, if Section 901(b) applies, this Court is bound by the interpretation of New York law provided by the Court of Appeals of New York. See Gruber v. Owens-Illinois, Inc., 899 F.2d 1366, 1369 (3d Cir.1990) (“In interpreting state statutes, decisions of the state’s highest court are binding upon us.”) In Sperry v. Crompton, 8 N.Y.3d 204, 831 N.Y.S.2d 760, 863 N.E.2d 1012, 2007 WL 527726 (2007), the Court of Appeals of New York concluded that a class action for treble damages cannot be maintained under the Donnelly Act. Accordingly, the Court will grant Intel’s Motion To Dismiss Class Plaintiffs’ antitrust claim for treble damages under the Donnelly Act. II. Whether Class Plaintiffs Have Stated A Claim Under State Consumer Protection Statutes In arguing that Class Plaintiffs’ claims under state consumer protection statutes should be dismissed, Intel first reiterates its argument that Class Plaintiffs have not suffered any injury, and therefore, they lack standing to pursue claims under state consumer protection laws. For the reasons discussed in the context of Plaintiffs’ antitrust claims, the Court concludes that Intel is not entitled to dismissal on this ground. Intel’s remaining arguments raise two points. First, Intel contends that the consumer protection statutes of Alaska, Georgia, Louisiana and Montana prohibit class actions, and therefore, Class Plaintiffs’ claims under these statutes should be dismissed. Intel’s second argument is directed to the consumer protection laws of Arkansas, Idaho, Kansas, Maine, New Mexico, New York and Utah. Intel contends that the consumer protection laws of these states prohibit only fraudulent, deceptive or unconscionable conduct, and Class Plaintiffs’ allegations are insufficient to meet these pleading requirements." }, { "docid": "11382019", "title": "", "text": "901(b) is a substantive law which must be applied in the federal forum. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 466 F.Supp.2d 467 (E.D.N.Y.2006) (stating that “certification in class actions brought under diversity jurisdiction ... is subject to the limitation imposed by § 901(b)”); Leider, 387 F.Supp.2d at 291(noting that the “bulk of cases to address the applicability of N.Y. C.P.L.R. § 901(b) have decided that the statute is substantive and applies with equal force in federal litigation”) (collecting cases); Noble v. 93 Univ. Place Corp., No. 02-CV-1803 (SAS), 2004 U.S. Dist. LEXIS 7631, at *28 (S.D.N.Y. May 4, 2004) (“[Sjection 901(b) is arguably substantive”); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 88 (S.D.N.Y.2001) (applying § 901(b) to action proceeding in federal court based on diversity jurisdiction); but see In re Oot, 112 B.R. 497, 502 (Bankr.N.D.N.Y.1989) (finding that § 901(b) is a procedural rule). This Court agrees with the prevailing line of cases holding that § 901(b) is substantive and thus finds that § 901(b) applies with equal force in the present action as it would if this case were brought in state court. In a recent well-reasoned opinion addressing this exact issue, the Honorable Carol B. Amon dismissed a TCPA class action brought in federal court for lack of subject-matter jurisdiction. See Bonime v. Avaya, Inc., No. 06-CV-1630 (CBA), 2006 WL 3751219 (E.D.N.Y.2006). After a thorough analysis, Judge Amon held that state substantive law applies to TCPA claims brought in federal courts sitting in diversity and that § 901(b) is a substantive law that prohibits plaintiffs from asserting a class action predicated on TCPA claims where New York law provides the relevant state law. Id,., at 2006 WL 3751219 *5, 2006 U.S. Dist. LEXIS 91964 *15-16. This Court agrees with Judge Amon’s sound reasoning in Bonime. Accordingly, just as plaintiff is unable to maintain a class action alleging claims under the TCPA in a state court in New York, plaintiff is unable to maintain a class action in this Court for alleged violations of the TCPA where New York law applies. Otherwise, a" }, { "docid": "8289582", "title": "", "text": "Chemical Bank New York Trust Co., 54 F.R.D. 412, 416 (SDNY 1972) (exercising “considerable discretion of a pragmatic nature’’ to refuse to certify a class because the plaintiffs suffered negligible actual damages but sought statutory damages of $13 million). . See, e.g., In re Automotive Refinishing Paint Antitrust Litigation, 515 F. Supp. 2d 544, 549-551 (ED Pa. 2007); Leider v. Ralfe, 387 P. Supp. 2d 283, 289-292 (SDNY 2005); Dornberger v. Metropolitan Life Ins. Co., 182 F.R.D. 72, 84 (SDNY 1999). See also Weber v. U. S. Sterling Securities, Inc., 282 Conn. 722, 738-739, 924 A.2d 816, 827-828 (2007) (§ 901(b) applied in Connecticut state court to action governed by New York substantive law). . Shady Grove projects that a dispensation in favor of Allstate would require “courts in all diversity class actions . . . [to] look to state rules and decisional law rather than to Rule 23 . . . in making their class certification decisions.’’ Brief for Petitioner 55. This slippery-slope projection is both familiar and false. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.’’). In this case, CPLR § 901(a) lists the state-law prerequisites for class certification, but Allstate does not contend that § 901(a) overrides Rule 23. Brief for Respondent 18 (“There is no dispute that the criteria for class certification under state law do not apply in federal court; that is the ground squarely occupied by Rule 23.’’). Federal courts sitting in diversity have routinely applied Rule 23’s certification standards, rather than comparable state provisions. See, e.g., In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 18-24 (CA1 2008); Order and Reasons in In re Katrina Canal Breaches Consol. Litigation, Civ. Action No. 05-4182 (ED La., Aug. 6, 2009). . The Court disputes the strength of the evidence of legislative intent, see ante, at 403, 176 L. Ed. 2d, at 320, but offers no alternative account of § 901(b)’s purpose. Perhaps this silence indicates how very hard it would be" }, { "docid": "1395600", "title": "", "text": "their attorneys migrating toward federal court to obtain the “substantial advantages” of class actions. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 338-39 & n. 9, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (discussing the increased fees and decreased costs associated with class actions). In addition, permitting Donnelly Act class actions exclusively in federal court would inequitably injure plaintiffs unable to demonstrate diversity of citizenship. See Walker v. Armco Steel Corp., 446 U.S. 740, 753, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980) (finding it inequitable that an action barred in the state courts should proceed to judgment in the federal courts “solely because of the fortuity that there is diversity of citizenship between the litigants”); Dornberger v. Metropolitan Life Ins. Co., 182 F.R.D. 72, 84 (S.D.N.Y.1998) (applying C.P.L.R. 901(b) because it would be “patently unfair” not to). Accordingly, the Court determined that C.P.L.R. 901(b) should be applied and that the end payor plaintiffs’ claims under the Donnelly Act are therefore barred. The Court’s application of C.P.L.R. 901(b) does not, however, necessarily bar the end payor plaintiffs’ claims under the New York consumer protection act, N.Y. Gen. Bus. Law § 349. Compl. 11102(q). Under Section 349(h), private plaintiffs may recover actual damages, a statutory minimum, or up to treble damages if the court finds a willful or knowing violation. N.Y. Gen. Bus. Law § 349(h). As with the Donnelly Act, because this Section does not “specifically authorize” class recovery, C.P.L.R. 901(b) bars class claims for minimum or treble damages. Super Glue Corp. v. Avis Rent A Car Sys., Inc., 132 A.D.2d 604, 517 N.Y.S.2d 764, 767 (N.Y.App.Div.1987). Class claims for actual damages, in contrast, are not similarly barred. Id. Accordingly, “the weight of authority holds that a class action may be maintained to recover actual damages and injunctive relief pursuant to General Business Law § 349(h).” Id. Yet bringing such an action requires named plaintiffs to waive their claims to minimum and treble damages. See id.; Burns v. Volkswagen of Am., Inc., 118 Mise.2d 289, 460 N.Y.S.2d 410, 413 (N.Y.Sup.Ct.1982). Such waiver necessarily casts doubt on the named plaintiffs’" }, { "docid": "785262", "title": "", "text": "the Court concludes at this juncture, that Class Plaintiffs’ claims under West Virginia law withstand dismissal. Accordingly, the Court will deny Intel’s Motion To Dismiss Class Plaintiffs’ West Virginia antitrust claims. D. Class Plaintiffs Class Action Claim For Violation Of New York’s Antitrust Law In their Complaint, Class Plaintiffs allege a claim under New York Gen. Bus. Law § 30 et seq. (the “Donnelly Act”) for antitrust violations. By its Motion, Intel contends that Class Plaintiffs cannot maintain this claim, because New York’s class action statute, CPLR § 901(b) , prohibits class actions under statutes like the Donnelly Act that provide for a treble damages remedy, but do not specifically authorize class action recovery. In response, Class Plaintiffs contend that this Court need not apply CPLR § 901(b), because it is a procedural rule whose application is usurped by Federal Rule of Civil Procedure 23. Because Rule 23 does not prohibit class recovery on treble damages claims, Class Plaintiffs maintain that class certification is not precluded, and therefore, dismissal of their Donnelly Act claim is not warranted. This Court has previously concluded that Federal Rule of Civil Procedure 23 does not conflict with § 901(b), and that under the principles set forth in Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), application of CPLR § 901(b) is appropriate. United States v. Dentsply Int’l, Inc., 2001 WL 624807, *15-16 (D.Del. Mar. 30, 2001) (Robinson, C.J.). The Court finds no reason to depart from the rationale in Dentsply. As Class Plaintiffs recognize, if Section 901(b) applies, this Court is bound by the interpretation of New York law provided by the Court of Appeals of New York. See Gruber v. Owens-Illinois, Inc., 899 F.2d 1366, 1369 (3d Cir.1990) (“In interpreting state statutes, decisions of the state’s highest court are binding upon us.”) In Sperry v. Crompton, 8 N.Y.3d 204, 831 N.Y.S.2d 760, 863 N.E.2d 1012, 2007 WL 527726 (2007), the Court of Appeals of New York concluded that a class action for treble damages cannot be maintained under the Donnelly Act. Accordingly, the Court will grant" }, { "docid": "11382020", "title": "", "text": "in the present action as it would if this case were brought in state court. In a recent well-reasoned opinion addressing this exact issue, the Honorable Carol B. Amon dismissed a TCPA class action brought in federal court for lack of subject-matter jurisdiction. See Bonime v. Avaya, Inc., No. 06-CV-1630 (CBA), 2006 WL 3751219 (E.D.N.Y.2006). After a thorough analysis, Judge Amon held that state substantive law applies to TCPA claims brought in federal courts sitting in diversity and that § 901(b) is a substantive law that prohibits plaintiffs from asserting a class action predicated on TCPA claims where New York law provides the relevant state law. Id,., at 2006 WL 3751219 *5, 2006 U.S. Dist. LEXIS 91964 *15-16. This Court agrees with Judge Amon’s sound reasoning in Bonime. Accordingly, just as plaintiff is unable to maintain a class action alleging claims under the TCPA in a state court in New York, plaintiff is unable to maintain a class action in this Court for alleged violations of the TCPA where New York law applies. Otherwise, a litigant who would be barred by § 901(b) from bringing a TCPA class action in New York state court would be able to bring that same lawsuit in federal court sitting in diversity in New York, even though the TCPA did not create federal question jurisdiction, but instead simply created a cause of action which could be brought in state court “if otherwise permitted by the laws or rules of court of a State.” 47 U.S.C. § 227(b)(3). Such an anomalous result would be inconsistent with the explicit statutory language of the TCPA, as well as Gottlieb and the “twin aims” of Erie — “discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna, 380 U.S. at 468, 85 S.Ct. 1136. Having found that § 901(b) precludes plaintiff from maintaining a class action in the instant case, the Court must dismiss this ease for lack of subject-matter jurisdiction because plaintiff concedes that he cannot otherwise meet the amount in controversy requirement of § 1332 and has asserted no other source of federal jurisdiction." }, { "docid": "11382018", "title": "", "text": "Servs. Corp., 22 A.D.3d 426, 803 N.Y.S.2d 52, 53 (N.Y.App.Div.2005); Rudgayzer & Graft v. Cape Canaveral Tour & Travel, Inc., 22 A.D.3d 148, 799 N.Y.S.2d 795, 800 (N.Y.App.Div.2005); Bonime v. Bridge 21, Inc., 21 A.D.3d 393, 799 N.Y.S.2d 417, 418 (N.Y.App.Div.2005); Bonime v. Disc. Funding Assocs., 21 A.D.3d 393, 799 N.Y.S.2d 418, 419 (N.Y.App.Div.2005). Having determined supra that this Court must apply under Erie any applicable substantive law of the state to a TCPA claim, the Court must determine whether § 901(b) is substantive or procedural. The Second Circuit has stated that The rational of [Erie] was, first, that federal courts should obtain results substantially similar to those reached by state courts considering the same cause of action, and second, that federal courts should avoid application of federal law if that application would significantly encourage forum shopping by prospective out-of-state litigants. Morse, 752 F.2d at 37 (citing Walker, 446 U.S. at 747, 100 S.Ct. 1978 and Hanna, 380 U.S. at 467, 85 S.Ct. 1136). Upon that rationale, the majority of courts have concluded that § 901(b) is a substantive law which must be applied in the federal forum. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 466 F.Supp.2d 467 (E.D.N.Y.2006) (stating that “certification in class actions brought under diversity jurisdiction ... is subject to the limitation imposed by § 901(b)”); Leider, 387 F.Supp.2d at 291(noting that the “bulk of cases to address the applicability of N.Y. C.P.L.R. § 901(b) have decided that the statute is substantive and applies with equal force in federal litigation”) (collecting cases); Noble v. 93 Univ. Place Corp., No. 02-CV-1803 (SAS), 2004 U.S. Dist. LEXIS 7631, at *28 (S.D.N.Y. May 4, 2004) (“[Sjection 901(b) is arguably substantive”); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 88 (S.D.N.Y.2001) (applying § 901(b) to action proceeding in federal court based on diversity jurisdiction); but see In re Oot, 112 B.R. 497, 502 (Bankr.N.D.N.Y.1989) (finding that § 901(b) is a procedural rule). This Court agrees with the prevailing line of cases holding that § 901(b) is substantive and thus finds that § 901(b) applies with equal force" }, { "docid": "9911929", "title": "", "text": "the federal and state rules, but whether “the federal statute [is] sufficiently broad to cover the point in dispute”). If the federal rule covers or controls the issue, the federal rule “must then be applied if it represents a valid exercise of Congress’ rulemaking authority, which originates in the Constitution and has been bestowed on this Court by the Rules Enabling Act.” Burlington N. R.R. Co., 480 U.S. at 5, 107 S.Ct. 967. Of course, the Court must also take into account the fact that “[t]he Federal Rule must not ‘abridge, enlarge or modify any substantive right...'\" Id. at 6, 107 S.Ct. 967 (quoting 28 U.S.C. § 2072). Here, there is no collision between Fed.R.Civ.P. 23 and N.Y. C.P.L.R. § 901(b). As another court has reasoned, “Rule 23 ‘merely establishes the procedures for pursuing a class action in the federal courts.’ Wade v. Danek Med., Inc., 182 F.3d 281, 290 (4th Cir.1999). It sets forth the circumstances under which ‘[o]ne or more members of a class may sue or be sued as representative parties,’ but makes no reference to the remedies that representative parties may seek.” In re Relajen Antitrust Litig., 221 F.R.D. 260, 285 (D.Mass.2004) (alteration in original) (quoting Wade v. Danek Med., Inc., 182 F.3d 281, 290 (4th Cir.1999)). On the other hand, N.Y.C.P.L.R. § 901(b) prohibits class actions for certain categories of litigation absent specific statutory authorization. These two statutes address different issues and thus, as other courts have concluded, may co-exist. E.g., United States v. Dentsply Int’l, Inc., Nos. Civ. A. 99-005-SLR, 99-255-SLR, 99-854-SLR, 2001 WL 624807, at *16 (D.Del. March 30, 2001) (holding that Rule 23 and § 901(b) do not conflict because “Rule 23 ... governs the manner of determining whether class certification is appropriate in federal courts [whereas] § 901(b) establishes a bar to certain claims being considered for class action treatment on a threshold level”); accord In re Relafen Antitrust Litig., 221 F.R.D. at 285; Dornberger v. Metro. Life Ins. Co., 182 F.R.D. 72, 84 (S.D.N.Y.1998). Plaintiffs’ reliance on In re Bridgestone/Firestone Inc. Tires Prods. Liability Litig., 205 F.R.D. 503 (S.D.Ind.2001), rev’d" }, { "docid": "9911930", "title": "", "text": "makes no reference to the remedies that representative parties may seek.” In re Relajen Antitrust Litig., 221 F.R.D. 260, 285 (D.Mass.2004) (alteration in original) (quoting Wade v. Danek Med., Inc., 182 F.3d 281, 290 (4th Cir.1999)). On the other hand, N.Y.C.P.L.R. § 901(b) prohibits class actions for certain categories of litigation absent specific statutory authorization. These two statutes address different issues and thus, as other courts have concluded, may co-exist. E.g., United States v. Dentsply Int’l, Inc., Nos. Civ. A. 99-005-SLR, 99-255-SLR, 99-854-SLR, 2001 WL 624807, at *16 (D.Del. March 30, 2001) (holding that Rule 23 and § 901(b) do not conflict because “Rule 23 ... governs the manner of determining whether class certification is appropriate in federal courts [whereas] § 901(b) establishes a bar to certain claims being considered for class action treatment on a threshold level”); accord In re Relafen Antitrust Litig., 221 F.R.D. at 285; Dornberger v. Metro. Life Ins. Co., 182 F.R.D. 72, 84 (S.D.N.Y.1998). Plaintiffs’ reliance on In re Bridgestone/Firestone Inc. Tires Prods. Liability Litig., 205 F.R.D. 503 (S.D.Ind.2001), rev’d in part, 288 F.3d 1012 (7th Cir.2002), is misplaced, for the state statute it addressed is simply not analogous to N.Y.C.P.L.R. § 901(b). There, the statute limited consumer actions to Michigan residents and persons injured in that state. Id. at 515. Thus, similar to Fed.R.Civ.P. 23, it imposed a criterion to apply at the class certification stage, which the court found to directly conflict with Fed.R.Civ.P. 23. Id. at 516 (M.C.P.A. § 445.911 “adds another criterion—injury or residence in Michigan—not contemplated by Rule 23’s requirements of numerosity or commonality of issues”). N.Y.C.P.L.R. § 901(b), on the other hand, simply provides that suits to recover a penalty may not be maintained at all as a class action unless the statute so provides. For this very reason, Burlington N. R.R. Co. is not the talisman that plaintiffs believe it to be. There, the Supreme Court held that Fed. R.App. P. 38, which authorizes appellate courts, in their discretion, to impose damages or costs for frivolous appeals, displaced an Alabama statute that imposed a mandatory penalty in all" }, { "docid": "1395595", "title": "", "text": "only. ii) Restrictions on Remedies Under New York law, “an action to recover a penalty ... imposed by statute may not be maintained as a class action” unless the statute imposing the penalty “specifically authorizes” class recovery. N.Y. C.P.L.R. 901(b). For purposes of this rule, the treble damages permitted by the New York antitrust statute, N.Y. Gen. Bus. Law §§ 340-347 (the “Donnelly Act”), have been deemed a “penalty.” Asher v. Abbott Labs., 290 A.D.2d 208, 737 N.Y.S.2d 4, 4 (N.Y.App. Div.2002); Cox v. Microsoft Corp., 290 A.D.2d 206, 737 N.Y.S.2d 1, 2 (N.Y.App.Div. 2002). Because the Donnelly Act imposes a “mandatory” penalty but does not “specifically authorize” class recovery, New York courts have dismissed class actions brought under the Act as impermissible. See Asher, 737 N.Y.S.2d at 4; Cox, 737 N.Y.S.2d at 2. These decisions suggest that C.P.L.R. 901(b), if applicable, would bar the end payor plaintiffs from pursuing their claims under the Donnelly Act in the present class action. It is not, however, completely clear that C.P.L.R. 901(b) ought be applied by federal courts. But see In re Microsoft Corp. Antitrust Litig., 127 F.Supp.2d 702, 727 (D.Md. 2001) (concluding that C.P.L.R. 901(b) required dismissal of the plaintiffs’ class action claims without considering whether the state rule applied in federal courts). Under Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), if the law of the relevant state is in “direct collision” with a valid Federal Rule of Civil Procedure, id. at 472, 85 S.Ct. 1136, the “Federal Rule applies regardless of contrary state law.” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 n. 7, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (citing Hanna, 380 U.S. at 469-74, 85 S.Ct. 1136). The Court’s initial inquiry, then, is whether C.P.L.R. 901(b) directly conflicts with the applicable Federal Rule, Rule 23. See 19 Wright, Miller & Cooper, supra, § 4504. On its face, Rule 23 “merely establishes the procedures for pursuing a class action in the federal courts.” Wade v. Danek Med., Inc., 182 F.3d 281, 290 (4th Cir.1999). It sets forth the circumstances under" }, { "docid": "11382022", "title": "", "text": "III. CoNclusion For the foregoing reasons, defendant’s motion to dismiss is GRANTED and plaintiffs motion for class certification is DENIED as moot. The Clerk of the Court is directed to enter judgment accordingly and to close this case. SO ORDERED. . The Class Action Fairness Act (“CAFA”) \"amended diversity jurisdiction requirements K by vesting jurisdiction in the federal courts over class actions where, inter alia, the amount in controversy exceeds $5 millionf,]” thereby abolishing the rule that prevented a class of plaintiffs from aggregating claims. DiTolla v. Doral Dental IPA of N.Y., LLC, 469 F.3d 271, 273 (2d Cir.2006) (citing 28 U.S.C. 1332(d)(2) and Gottlieb, 436 F.3d at 341 n. 7). . Neither party argues that the law of a state other than that of New York governs the instant action. . As an initial matter, the Court finds, and plaintiff does not dispute, that § 901(b) is a matter not covered by Federal Rule of Civil Procedure 23. See Leider v. Ralfe, 387 F.Supp.2d 283, 290 (S.D.N.Y.2005) (finding that “there is no collision between Fed. R.Civ.P. 23 and N.Y. C.P.L.R. § 901(b)”); In re Reiafen Antitrust Litig., 221 F.R.D. 260, 285 (D.Mass.2004) (same); Dornberger v. Metropolitan Life Ins. Co., 182 F.R.D. 72, 84, (S.D.N.Y.1998) (same). . By letter dated February 26, 2007, counsel for defendant requested a pre-motion conference on a proposed motion to stay the proceedings pending the appeal of Bonime. However, this Court had previously addressed the issue of whether to stay the action on a telephone conference held on January 16, 2007. During that telephone conference, counsel for plaintiff objected to a stay and the Court agreed to proceed with ruling on the pending motions. Accordingly, having decided the pending motions, defendant's proposed motion to revisit the issue and stay the proceedings is denied. . Because the Court finds that N.Y. C.P.L.R. § 901(b) prevents the instant case from proceeding as a class action, the Court need not address defendant’s alternative argument that class actions may not be maintained under the TCPA." }, { "docid": "3494091", "title": "", "text": "the Justices in the majority: it is the concurring opinion that offers the least change to the law.”). Thus, after Shady Grove, state laws that categorically prohibit the maintenance of class action lawsuits no longer will be an effective bar to such suits if the state law that prohibits them is procedural in nature and is not “so intertwined” with the right or remedy that it defines the scope of the right. Because the Court has dismissed on standing grounds the IP Plaintiffs’ claims in five of the six states in which Defendants claim class actions are barred, i.e. Idaho, Kansas, Mississippi, Montana and Utah, the Court examines only Defendants’ claim that class actions are prohibited under New York law. The IP Plaintiffs claim that Defendants have violated the New York antitrust laws, N.Y. Gen. Bus. Law § 340(1), (“the Donnelly Act”). Defendants respond that New York Civil Practice Rule § 901(b), which prohibits class actions in suits seeking penalties or statutory minimum damages, bars a private litigant from maintaining a class action under the Donnelly Act. Cox v. Microsoft Corp., 290 A.D.2d 206, 737 N.Y.S.2d 1 (N.Y.App.Div. 2002) (so holding). Nor, Defendants argue, can the IP Plaintiffs waive the treble damages provision under the Donnelly Act to escape application of the § 901(b) bar. Asher v. Abbott Labs., 290 A.D.2d 208, 208-209, 737 N.Y.S.2d 4 (1st Dep’t 2002) (holding that “private persons cannot bring a class action under the Donnelly Act because the treble damages remedy provided in General Business Law § 340 is a ‘penalty’ within the meaning of CPLR 901(b), the recovery of which in a class action is not specifically authorized and the imposition of which cannot be waived.”). While Defendants’ argument was well taken when their brief was filed, it has since been undermined by the Supreme Court’s decision in Shady Grove. Under a Shady Grove analysis, the IP Plaintiffs’ class action claim asserted in federal court under the New York antitrust laws is no longer barred by § 901(b). See In re Wellbutrin, 756 F.Supp.2d at 679, 2010 WL 5186052 at *9 (finding that" }, { "docid": "3494092", "title": "", "text": "Donnelly Act. Cox v. Microsoft Corp., 290 A.D.2d 206, 737 N.Y.S.2d 1 (N.Y.App.Div. 2002) (so holding). Nor, Defendants argue, can the IP Plaintiffs waive the treble damages provision under the Donnelly Act to escape application of the § 901(b) bar. Asher v. Abbott Labs., 290 A.D.2d 208, 208-209, 737 N.Y.S.2d 4 (1st Dep’t 2002) (holding that “private persons cannot bring a class action under the Donnelly Act because the treble damages remedy provided in General Business Law § 340 is a ‘penalty’ within the meaning of CPLR 901(b), the recovery of which in a class action is not specifically authorized and the imposition of which cannot be waived.”). While Defendants’ argument was well taken when their brief was filed, it has since been undermined by the Supreme Court’s decision in Shady Grove. Under a Shady Grove analysis, the IP Plaintiffs’ class action claim asserted in federal court under the New York antitrust laws is no longer barred by § 901(b). See In re Wellbutrin, 756 F.Supp.2d at 679, 2010 WL 5186052 at *9 (finding that § 901(b) does not survive Shady Grove as applied to a class action antitrust claim); In re Static Random Access Memory (SRAM) Antitrust Litig., No. 07-01819, 2010 WL 3069329 at *1-3 (N.D.Cal. Aug. 3, 2010) (allowing an amendment after Shady Grove to assert a class action claim under the Donnelly Act); Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F.Supp.2d 380, 398-99 (E.D.Pa.2010) (recognizing this and permitting amendment to add such a claim which it had earlier dismissed). D. The IP Plaintiffs’ Florida, Michigan and New York State Law Antitrust and Consumer Protection Claims The IP Plaintiffs assert claims under numerous states’ antitrust and consumer protection/deceptive trade practices laws. The Court has dismissed a majority of those claims on the grounds that the named IP Plaintiffs lack Article III standing to assert claims under the laws of those states in which they do not reside or in which they have not plausibly alleged an injury. See supra discussion at pp. 657-59. The Court will address the IP Plaintiffs’ state antitrust" }, { "docid": "9911933", "title": "", "text": "L.Ed.2d 659 (1996) (noting that “Federal courts have interpreted the Federal Rules ... with sensitivity to important state interests and regulatory policies”). Having determined that Fed.R.Civ.P. 23 does not cover the issue addressed in N.Y. C.P.L.R. § 901(b), the final inquiry is whether N.Y. C.P.L.R. § 901(b) is a substantive or procedural rule. Under Erie, “federal courts should obtain results substantially similar to those reached by state courts considering the same cause of action, and ... should avoid application of federal law if that application would significantly encourage forum shopping by prospective out-of-state litigants.” Morse v. Elmira Country Club, 752 F.2d 35, 37 (2d Cir.1984). Courts have concluded that N.Y. C.P.L.R. § 901(b) must apply in a federal forum because it would contravene both of these mandates to allow plaintiffs to recover on a class-wide basis in federal court when they are unable to do the same in state court. E.g., In re Relafen Antitrust Litig., 221 F.R.D. at 285 (reasoning that a failure “to apply C.P.L.R. 901(b) would clearly encourage forum-shopping, with plaintiffs and their attorneys migrating toward federal court to obtain the ‘substantial advantages’ of class actions”); Dornberger, 182 F.R.D. at 84 (refusing to certify plaintiffs’ N.Y. Ins. Law. § 4226 claims in light of N.Y. C.P.L.R. § 901(b) because “[i]t would be patently unfair to allow plaintiff an attempt at recovery in federal court for a state law claim that would be barred in state court.”); Dentsply Int’l, Inc., 2001 WL 624807, at *16 (“In order to ensure that the outcome of the litigation at bar will be substantially the same ... the court shall apply N.Y. C.P.L.R. § 901(b), which precludes these New York State residents from maintaining a class action under the Donnelly Act.”). These decisions are entirely consistent with Erie and later Supreme Court decisions with respect to the application of state law in federal courts, which hold that “there is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts ... should proceed through litigation to" }, { "docid": "1395598", "title": "", "text": "that “since enacting the Donnelly Act, the New York State Legislature has twice considered the indirect purchasers!”] right to bring suit,” but has adopted “no express language[ ] ... which authorizes the maintenance of a class action.” Lennon, 734 N.Y.S.2d at 381. In light of the text and policies of the provisions, the Court declines to interpret Rule 23 so broadly as to control the remedial issues governed by C.P.L.R. 901(b) and the Donnelly Act. Accordingly, the Court discerns no direct conflict between the state law and the Federal Rule. See United States v. Dentsply Int’l, Inc., Nos. Civ. A. 99-005-SLR, 99-255-SLR, 99-854-SLR, 2001 WL 624807, at *16 (D.Del. Mar. 30, 2001) (distinguishing the scope of Rule 23 from that of C.P.L.R. 901(b)); but cf. Bridgestone/Firestone, 205 F.R.D. at 516, rev’d in part on other grounds sub nom. In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (refusing to apply the reasoning of Dentsply International, and concluding that a Michigan provision limiting class action plaintiffs to those residing or injured in the state conflicts with Rule 23). Because it found no “direct collision” between the state and federal provisions, the Court’s decision whether to apply C.P.L.R. 901(b) was guided not by Hanna, but by the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” 19 Wright, Miller & Cooper, supra, § 4504 (quoting Hanna, 380 U.S. at 468, 85 S.Ct. 1136); see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Significant to the Court’s Erie analysis was the fact that New York courts consistently apply C.P.L.R. 901(b) to bar class actions brought under the Donnelly Act. See Cox, 737 N.Y.S.2d at 2; Asher, 737 N.Y.S.2d at 4; Lennon, 734 N.Y.S.2d at 380 (“Even where treble damages are discretionary and need not be sought by the injured party, it is this Court’s understanding that no New York court has sustained such a claim either under the Donnelly Act or any other statutory provision.”). For this reason, declining to apply C.P.L.R. 901(b) would clearly encourage forum-shopping, with plaintiffs and" } ]

[ { "docid": "3411628", "title": "", "text": "take a turn that displeased the defendant. When police officers stop a motor vehicle, or come upon an accident scene, they nev er know what criminal activity they might inadvertently uncover. When an occupant of a vehicle acts in the manner of this defendant, the police officer has the right, for his own protection, to ask the individual what he is concealing under his jacket. When he gets the response, “nothing,” the officer has the right to further conduct a pat down for a concealed weapon. When this defendant brushed the officer’s hand away, and the officer again reached in that area and could feel the barrel of an automatic weapon, he had the right to disarm the defendant and place him under arrest. Later at the hospital, the search incident to the arrest which revealed the crack cocaine, was lawful. After the defendant was taken into custody but prior to his being read his Miranda warnings, Police Officer Feenan said to the defendant words to the effect, “You’re stupid for not getting rid of the gun.” To which the defendant responded, “I couldn’t, it was my buddy’s.” The safeguards set forth in Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) come into play whenever a person in custody is subjected to either expressed questioning or its functional equivalent. The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of the definition focuses primarily upon the perceptions of the suspect rather than the intent of the police. Under the circumstances of this case, I find that the police officer should have known that his statement to the defendant was reasonably likely to elicit an incriminating response. I find that it was, therefore, obtained in violation of the defendant’s Miranda rights and should be suppressed. I, therefore, make the following Order." } ]

[ { "docid": "12046483", "title": "", "text": "302(b). Likewise, Sergeant Thompson was free to testify as to his conclusions concerning appellant’s intoxication. He could explain that one of the reasons for his conclusion was that the accused understood his questions and gave responsive answers. However, he could not give the contents of any answers which related in any way to the offense. The Government has also asserted that appellant’s answers about the. blood on his coat were admissible because they are analogous to the answers to questions asked when an arrested suspect is booked. In this connection, appellate government counsel points to United States v. Davenport, 9 M.J. 364 (C.M.A. 1980), where we ruled that an accused’s answer to a policeman’s question about his identity was admissible even though it had not been preceded by a warning. Moreover, the Supreme Court apparently excludes from the term “interrogation” the questioning of a defendant which is “normally attendant to arrest and custody.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). However, when we look at the facts of this case, it is hard to see how a question about blood on appellant’s coat at the time of his apprehension could be considered part of the booking process. If Williams had been bleeding and, in order to determine his physical condition, a question had been asked about how he got hurt, the situation might be different. However, the circumstance that the coat was being seized as evidence does not seem to authorize admission of the statement about how the blood got there. Clearly the questions asked by Sergeant Thompson were intended to help solve a suspected crime, rather than to identify a piece of property being taken into police custody. Appellate government counsel have also invoked Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), as a justification for the reception of appellant’s statements to Sergeant Thompson. Of course, Harris involved the use of otherwise admissible evidence to impeach sworn testimony given at trial by the defendant; and appellant never took the stand. Our attention has not" }, { "docid": "11073323", "title": "", "text": "Story had located the hidden compartment. See supra at 5. Appellant claims that the admission of his inculpatory remarks violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965). In his brief, appellant admitted that Agent Story advised him of his Miranda rights at the scene of the arrest, and that appellant affirmatively responded that he understood those rights. In order for appellant to make out a claim under Miranda, however, his statements must have been the product of custodial interrogation. Id. at 444, 86 S.Ct. 1602 (“[T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards- effective to secure the privilege against self-incrimination.”). The protections of Miranda extend beyond actual questioning by the police to include the “functional equivalent” of interrogation, meaning “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Although Story and Houle did formally question appellant about the registration of the van, the agents ceased interrogation when appellant indicated he wanted to talk to his lawyer. Although Lopez remained in custody, any statement made “freely and voluntarily without any compelling influences is, of course, admissible-in evidence,” Miranda, 384 U.S. at 478, 86 S.Ct. 1602. See Innis, 446 U.S. at 299, 100 S.Ct. 1682. We see no indication that appellant’s statements stemmed from custodial interrogation or its functional equivalent. Houle’s remark, although suggesting that the case against Lopez was strengthened by discovery of “the stuff,” was not designed to elicit an incriminating response. Although our focus must be “primarily upon the perceptions of the suspect, rather than the intent of the police,” Innis, 446 U.S. at 301, 100 S.Ct. 1682, it is difficult to see how appellant could have construed a passing remark as the functional equivalent of interrogation. Indeed, Houle left the room immediately after making" }, { "docid": "23637547", "title": "", "text": "that the privilege against self-incrimination protects an individual not only from “being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Harrison v. Wille, 132 F.3d 679, 682 (11th Cir.1998) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)). In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that protecting a suspect’s Fifth Amendment privilege against self-incrimination requires that he be warned prior to “custodial interrogation” that he has the right to remain silent and to have an attorney present. “A defendant is in custody for the purposes of Miranda when there has been a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir.2006) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1988)). “Interrogation,” under Miranda “means ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” United States v. Gomez, 927 F.2d 1530, 1538 (11th Cir.1991) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). The Supreme Court has defined an “incriminating response” as “any response— whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Innis, 446 U.S. at 302 n. 5, 100 S.Ct. 1682 (emphasis omitted). Here, the parties do not dispute whether Lopez-Garcia was in custody at the time of the interview. Instead, they join issue over whether Diaz’s discussion with Lopez-Garcia amounted to an “interrogation” within the meaning of Miranda. That question boils down to whether Diaz should have known that his questions were reasonably likely to elicit an incriminating response from Lopez-Garcia. Under these" }, { "docid": "22574142", "title": "", "text": "Border Patrol Office to report his suspicions. Agent Mario Vasquez of the U.S. Border Patrol responded to the call and interviewed Gonzalez in a Calexico Police Department holding cell. Without giving Miranda warnings, Agent Vasquez asked Gonzalez where he was born and whether he had documents verifying his legal entry into the United States. Vasquez then transported Gonzalez to the Calexico Border Patrol Station for further questioning and ran a series of records checks to determine his immigration status. After the first check revealed that Gonzalez was an immigrated alien, Vasquez asked if he had ever used an alias. Gonzalez answered that previously he had used the name \"Guillen\". Vasquez then ran a records check under that name and for the first time discovered the record of the previous deportation. Only then was Gonzalez advised of his Miranda rights and charged with violation of 8 U.S.C. § 1326. I. THE MIRANDA VIOLATION Gonzalez-Sandoval argues that the district court erred in denying his pre-trial motion to suppress statements elicited from him by Border Patrol agents while he was being detained in the Calexico Police Station. He contends that the questions asked about his immigration status and place of birth constitute an \"interrogation\" in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that his answers and information obtained derivatively through them should have been excluded at trial. The government argues that the questions were aimed merely at establishing Gonzalez-Sandoval's identity and were not calculated to elicit inculpatory responses. The ruling in Miranda prohibits \"custodial interrogation\" unless the government first gives warnings to the suspect. However, as we noted in United States v. Booth, 669 F.2d 1231 (9th Cir.1981), \"not every question posed in a custodial setting is equivalent to `interrogation.'\" Id. at 1237. Custodial questioning constitutes interrogation \"whenever, under all the circumstances involved in a given case, the questions are `reasonably likely to elicit an incriminating response from the suspect.'\" Id., quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980). Neither party contests" }, { "docid": "3404192", "title": "", "text": "after the authorities have initiated adversary proceedings against the defendant. This case raises questions of whether Robinson’s fifth and sixth amendment rights were violated when the police arrested, processed, and questioned him at the Portsmouth police station. A. Questions During Processing Robinson first contends that his constitutional rights were violated when the detective asked him questions during processing. The Wisconsin courts and the district court below held that the questioning was not interrogation, and thus did not implicate Robinson’s constitutional rights. The fifth amendment privilege against self-incrimination and right to counsel require police to follow certain procedural safeguards during custodial interrogations of a suspect. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Not all police questioning, however, is “interrogation” for fifth amendment purposes. In Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), the United States Supreme Court defined “interrogation” as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” This court recently held that Miranda does not apply when officers ask a suspect routine processing questions. United States v. Kane, 726 F.2d 344, 349 (7th Cir.1984). The questions that the detective asked Robinson were from the standard identification form that the Portsmouth police use when processing arrestees. To the extent that Robinson gave incriminating responses, his answers merely exceeded the scope of the questions. The Miranda safeguards do not apply to such volunteered statements. Miranda, 384 U.S. at 478, 86 S.Ct. at 1629. Robinson nonetheless claims that the detective deviated from the standard identification questions by asking how Robinson received the scar on his forehead. The trial court, however, found that the detective did not ask Robinson about the scar, but that Robinson volunteered his comment about being pistol-whipped in Milwaukee. Although the record is ambiguous on- this matter, we must uphold the trial court’s factual findings absent clear error. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66" }, { "docid": "10807420", "title": "", "text": "response to Saldana questioning him about throwing the bag out the vehicle window are inadmissible because he was not provided with Miranda warnings before making the statements. In order to enforce the Fifth Amendment, the government must advise a defendant of his Miranda rights before commencing custodial interrogation. DeWeaver v. Runnels, 556 F.3d 995, 1000 (9th Cir.2009) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). In this case, defendant was “in custody” when Saldana approached him at the curb. See Stansbury v. California, 511 U.S. 318, 320, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (“In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a formal arrest of restraint on freedom of movement of the degree associated with a formal arrest.’ ”) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (internal quotation marks and citation omitted)); see also United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.2004) (en banc). The testimony established that when Saldana approached defendant, he had been ordered out of his vehicle, detained, placed in handcuffs, and was sitting on the curb. The Court concludes that under these circumstances, there was either a formal arrest or a restraint on defendant’s freedom of movement of the degree typically associated with a formal arrest. The parties dispute whether Saldana’s statement, “I saw you throw that,” informing defendant that Saldana had observed defendant throw the bag out the window was an interrogation. “Not every question asked in a custodial setting constitutes ‘interrogation.’ ” United States v. Mata-Abundiz, 717 F.2d 1277, 1279 (9th Cir.1983) (quoting United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.1982)). However, the Court finds that Saldana’s statement to defendant was reasonably likely to elicit an incriminating response from defendant, and therefore was an interrogation within the meaning of Miranda. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (The applicable test is whether the" }, { "docid": "17243222", "title": "", "text": "knew for more than twenty years. That Mr. Brownlee instigated and initiated the conversation when he asked the constable to call his father. And the constable did not use any actions or words which he knew or should have known were reasonably likely to elicit an incriminating response from the defendant. The constable did not, therefore, engage in interrogation of the suspect, and his statement from the defendant to the constable will be admissible evidence. Thus, the question before us is whether Dzugan “interrogated” Brownlee, an inquiry that we answer in the affirmative for the reasons that follow. Under the prophylactic rules announced in Miranda, a statement made by a suspect in response to custodial interrogation after he or she has elected to remain silent is inadmissible at trial. 384 U.S. at 478-79, 86 S.Ct. 1602. As the Supreme Court held in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), this rule comes “into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers ... to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 300-01, 100 S.Ct. 1682 (internal footnote omitted). An incriminating response is “any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Id. at 301 n. 5, 100 S.Ct. 1682 (emphasis in original). Police may not, however, “be held accountable for the unforeseeable results of their words or actions[,]” id. at 302, 100 S.Ct. 1682, and to constitute an interrogation their conduct “must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S.Ct. 1682. While Dzugan alleges that Brownlee initiated the “conversation” that took place shortly after his arrest by asking the officer to adjust the air conditioning and, later, to call his father, Dzugan concedes that it was he who" }, { "docid": "21886832", "title": "", "text": "873 (5th Cir.1980), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980). . We find that Hill’s persistent questioning constitutes \"interrogation” and not a \"routine inquiry” permissible even after a suspect has requested that questioning cease. See Christopher v. State, 824 F.2d 836, 845 (11th Cir.1987) (example of routine inquiry is whether suspect would like drink of water), cert. denied, 484 U.S. 1077, 108 S.Ct. 1057, 98 L.Ed.2d 1019 (1988). The police subject a person to the functional equivalent of interrogation when they engage in conduct that they \"should know [is] reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1979); see Endress v. Dugger, 880 F.2d 1244, 1249 (11th Cir.1989), cert. denied, 495 U.S. 904, 110 S.Ct. 1923, 109 L.Ed.2d 287 (1990). Detective Hill’s conceded purpose in questioning Jacobs was essentially to “ ‘open up a more generalized discussion relating directly or indirectly to the investigation.’ ” Christopher, 824 F.2d at 845 (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983)); see Rhode Island v. Innis, 446 U.S. at 301, 100 S.Ct. at 1689 (intent of police relevant to determining whether questioning constitutes “interrogation”). Hill was aware that she had already been placed into custody. He then repeatedly attempted to ascertain her name, first within a patrol car, and next at a police station. We find that Hill should have known that the circumstances of his questioning and particularly the persistent, unflagging nature of his inquiry were inherently coercive and thus “reasonably likely\" to produce an incriminating response. See United States v. Poole, 794 F.2d 462, 467 (9th Cir.1986) (agent who was not arresting officer and who asked questions about name and date of birth for investigatory purposes conducted “interrogation\") (cited with approval, Christopher, 824 F.2d at 845). . The admissible statement to Weber, revealing that Jacobs likely owned the handgun used to commit the shootings, was relatively insignificant. Moreover, the credibility of the statement to Farinato is not unassailable. Farinato insisted that" }, { "docid": "22574143", "title": "", "text": "he was being detained in the Calexico Police Station. He contends that the questions asked about his immigration status and place of birth constitute an \"interrogation\" in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that his answers and information obtained derivatively through them should have been excluded at trial. The government argues that the questions were aimed merely at establishing Gonzalez-Sandoval's identity and were not calculated to elicit inculpatory responses. The ruling in Miranda prohibits \"custodial interrogation\" unless the government first gives warnings to the suspect. However, as we noted in United States v. Booth, 669 F.2d 1231 (9th Cir.1981), \"not every question posed in a custodial setting is equivalent to `interrogation.'\" Id. at 1237. Custodial questioning constitutes interrogation \"whenever, under all the circumstances involved in a given case, the questions are `reasonably likely to elicit an incriminating response from the suspect.'\" Id., quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980). Neither party contests that Gonzalez-Sandoval was in custody when the questioning at issue occurred. Whether the inquiries made of Gonzalez-Sandoval constitute interrogation is subject to review under the \"clearly erroneous\" standard. United States v. Equihua-Juarez, 851 F.2d 1222, 1225 n. 7 (9th Cir.1988); United States v. Poole, 806 F.2d 853 (9th Cir.1986). In previous cases we have held that, because the relevant questions rarely elicit an incriminating response, routine gathering of biographical data does not constitute interrogation sufficient to trigger constitutional protections. United States v. Perez, 776 F.2d 797, 799 (9th Cir.1985); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983); Booth, 669 F.2d at 1288. That exception is inapplicable, however, where the elicitation of information regarding immigration status is reasonably likely to inculpate the respondent. As we observed in Mata-Abundiz, \"[t]he relationship of the question asked to the crime suspected is highly relevant.\" 717 F.2d at 1280. In that case the defendant had been arrested and was being held on charges of carrying a concealed weapon and posses sion of a firearm by an alien when" }, { "docid": "16226993", "title": "", "text": "three hours but had not been advised of his Miranda rights. The District Court denied a pre-trial motion by Jaramillo to suppress the statement, and Olson testified about the statement at trial. Jaramillo asserts that the admission of the statement violates his Fifth Amendment rights. “When considering an order denying a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusions de novo.” United States v. Briones, 390 F.3d 610, 612 (8th Cir.2004), cert. denied, — U.S.-, 125 S.Ct. 2925, 162 L.Ed.2d 308 (2005). The requirements of Miranda arise only when a defendant is both in custody and being interrogated. United States v. Head, 407 F.3d 925, 928 (8th Cir.2005). Because it is undisputed that Jaramillo was in' custody and had not yet been advised of his rights, the issue is whether his statement resulted from interrogation. See Briones, 390 F.3d at 612. Interrogation includes both direct questioning by officers and words or actions that officers should know are “ ‘reasonably likely to elicit an incriminating response from the suspect.’ ” Id. (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). Voluntary statements that are not in response to interrogation are admissible with or without the giving of Miranda warnings. Head, 407 F.3d at 928. Jaramillo argues that asking him to assist in the bookings of the other suspects was a police strategy designed to elicit an involuntary and incriminating statement, particularly given the “inherently coercive” environment of custody. Jaramillo Br. at 11. We disagree. The record indicates that the only question that had been asked of Jaramillo prior to his statement was whether he was willing to assist in the bookings of his co-defendants. Then, during the course of the bookings and not in response to any question, Jaramillo mentioned the $500.00 payment. Nothing in the record indicates that Olson anticipated that his request for assistance would cause Jaramillo to make an incriminating remark. See United States v. Mendoza-Gonzalez, 363 F.3d 788, 795 (8th Cir.2004) (holding that officer could not have reasonably expected suspect to" }, { "docid": "22132125", "title": "", "text": "the officers. On appeal, defendant maintains he was subjected to interrogation, citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), where the Supreme Court held: We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Footnotes omitted.) Thus, interrogation triggers the need to give the Miranda warnings. Defendant has not challenged the district court’s finding that he had been given the Miranda warnings and was otherwise aware of his right to remain silent. He maintains, however, that he had invoked his right to remain silent when he chose not to answer the officers’ questions about firearms. Statements made thereafter, he contends, are admissible only if the officers scrupulously honored his right to cut off questioning. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Defendant maintains Special Agent Jenkins did not scrupulously honor his Fifth Amendment right, but attempted to elicit incriminating information from him after he had attempted to cut-off questioning. Defendant’s claim of error fails for three reasons. First, his argument depends upon a finding that defendant articulated his right to remain silent sufficiently clearly that a reasonable officer would, under the circumstances, perceive it as such. See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (determination whether right to counsel has been effectively invoked is objective one); Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir.1995), cert. denied, 517 U.S. 1247, 116 S.Ct. 2505, 135 L.Ed.2d 195 (1996) (applying Davis standard to invocation of right to remain silent). Considering the unchallenged findings that defendant was aware of his Miranda rights and expressly agreed to answer specific questions, his refusal to answer" }, { "docid": "12046482", "title": "", "text": "argued that the defendant’s “responses were not testimonial because their contents were irrelevant. What was essential was not the contents of appellant’s disclosures, but the fact that he was able to articulate appropriate responses.” The California Supreme Court rejected this argument, because it “overlooks the fact that the contents of appellant’s disclosures were necessarily relevant to the purpose for which they were admitted. Only by examining whether his disclosures were responsive and accurate could anything be inferred about a lack of diminished capacity.” Id. 162 Cal.Rptr. at 22, 605 P.2d at 852. Cf. United States v. Hinckley, 672 F.2d 115, 125 (D.C. Cir. 1982). The situation is somewhat akin to that which arises in connection with a mental examination of an accused. According to Mil.R.Evid. 302, “[a]n expert witness for the prosecution may testify as to the reasons for ... [his] conclusions ... [about] the mental state of the accused ... but such testimony may not extend to statements of the accused,” unless they have first been introduced into evidence by the defense. See Mil.R.Evid. 302(b). Likewise, Sergeant Thompson was free to testify as to his conclusions concerning appellant’s intoxication. He could explain that one of the reasons for his conclusion was that the accused understood his questions and gave responsive answers. However, he could not give the contents of any answers which related in any way to the offense. The Government has also asserted that appellant’s answers about the. blood on his coat were admissible because they are analogous to the answers to questions asked when an arrested suspect is booked. In this connection, appellate government counsel points to United States v. Davenport, 9 M.J. 364 (C.M.A. 1980), where we ruled that an accused’s answer to a policeman’s question about his identity was admissible even though it had not been preceded by a warning. Moreover, the Supreme Court apparently excludes from the term “interrogation” the questioning of a defendant which is “normally attendant to arrest and custody.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). However, when we look at the" }, { "docid": "6677218", "title": "", "text": "violated immigration laws. Because his arrest was lawful under the Fourth Amendment, the search of his person incident to that arrest was also permissible under the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The district court did not err in refusing to suppress evidence on this basis. B. Torres-Lona also argues that the statements he made to ICE agents while in custody should have been suppressed because he was not adequately apprised of his right not to answer questions and to have an attorney present. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A Miranda warning must be administered when a suspect undergoes custodial interrogation, id., which occurs when an officer’s interaction with the suspect is “likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The district court determined that agents Cantrell and Spaulding should have known that questioning Torres-Lona about his social security card might elicit an incriminating response since they were investigating counterfeit social security documents. It therefore suppressed all of the statements made between the time Torres-Lona was taken into custody and the time he received a Miranda warning at the ICE office. The government has not challenged this portion of the district court’s ruling, and we assume for purposes of this appeal that the agents should have administered a Miranda warning prior to questioning him about the social security card found in his wallet. Torres-Lona contends that the district court erred in denying suppression of his post Miranda statement which led to his indictment. The government does not dispute that he made this statement in the course of a custodial interrogation. The only dispute is whether suppression is warranted even though the statement was made after administration of a Miranda warning. Torres-Lona argues that the Miranda warning administered by Cantrell was not adequate to advise him of his rights because it was not given at the outset of questioning. He notes that at the time the" }, { "docid": "22132124", "title": "", "text": "good information on you.” Defendant reportedly responded that he knew they got their information from Edwin (Quinones). And he added, “It was his [Quinones’] idea to do the burglaries.” This is the statement the district court refused to suppress. Claiborne’s account of the encounter was substantially the same as that given by Jenkins. Defendant’s account was materially different only in that he did not remember Jenkins reading him the Miranda rights. Yet, defendant freely admitted at the suppression hearing that he was familiar with his right to remain silent, having been interviewed by law enforcement officers before. He also admitted he was willing to speak with the officers provided they asked specific questions. In moving to suppress the statement, defendant contended that his Fifth Amendment right to remain silent was violated in that he had not effectively waived it at the time the statement was made. The district court denied the motion, finding that Jenkins did read defendant his Miranda rights and that defendant was not subjected to interrogation when he volunteered his statement to the officers. On appeal, defendant maintains he was subjected to interrogation, citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), where the Supreme Court held: We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Footnotes omitted.) Thus, interrogation triggers the need to give the Miranda warnings. Defendant has not challenged the district court’s finding that he had been given the Miranda warnings and was otherwise aware of his right to remain silent. He maintains, however, that he had invoked his right to remain silent when he chose not to answer the officers’ questions about firearms. Statements made thereafter, he contends," }, { "docid": "10886446", "title": "", "text": "testimony in light of the totality of the circumstances. Id. at 719-20. Miranda rights come into play when a person is in custody and subject to express questioning, or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also id. at 301, 100 S.Ct. 1682 (“The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”). Thus, a Miranda violation does not occur when officers question a defendant only to a limited extent for personal data required as part of the processing normally attendant to arrest and custody since these types of questions would not reasonably be expected to elicit incriminating responses. United States v. Kane, 726 F.2d 344, 349 (7th Cir.1984). In the present case, it is unclear from the record what specific questions were asked to obtain personal-history information. We do know that the entire first page of the report was filled out, and that the entire second page, except for biographical questions about Lee’s children, appears to have been left blank. In addition, Sergeant Gorsuch’s testimony indicates that the only potentially incriminating question Lee was asked prior to his being read his Miranda rights was a question related to his drug associates, and even the answer to that was left blank on the personal-history report. While this could be problematic in light of its incriminatory potential, we assume without deciding that such a question need not always be impermissible pre-Miranda. See, e.g., United States v. Washington, 462 F.3d 1124, 1132-33 (9th Cir.2006) (holding that, because agents routinely obtain gang-moniker and gang-affiliation information in order to ensure prisoner safety, such information is routinely part of gathering background information, and not part of the interrogation process). Regardless, and as we proceed to explain, there is no evidence that Lee’s answer to that question — assuming it were in fact asked and" }, { "docid": "18801236", "title": "", "text": "Meatley’s contentions that he was denied his federal constitutional rights because of the delay in his arraignment and the failure of the trial court to suppress the identifications and the statements. The respondent does not argue otherwise. Furthermore, presumably the Court of Appeals read the Appellate Division order discussing points II and III. Ill The court considers on the merits the claims that the trial court should have suppressed certain inculpatory statements and identifications and that Meatley received ineffective assistance of appellate counsel. A Meatley says that his inculpatory statements should have been suppressed because, although he declined to answer questions after receiving Miranda warnings, McGovern told him, solely for the purpose of eliciting a statement from him, that he had been identified. On habeas review this court may independently consider whether Meatley’s inculpatory statements were coerced. See Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985). But in so doing, the court defers to findings of fact by the state court, except where those findings have no fair support in the record or where a petitioner can establish “by convincing evidence that the factual determination by the State court was erroneous.” Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981) (emphasis in the original); see also 28 U.S.C. § 2254(d). If after receiving Miranda warnings an accused invokes his right to remain silent, any interrogation “must cease.” Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981). For Miranda purposes, “interrogation” includes not only “express questioning” but also its “functional equivalent,” that is, “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). The trial court concluded, after an evidentiary healing, that Meatley’s statements were not coerced, finding that “although he was in custody for more than thirteen (13) hours, he was given his Miranda warnings on three separate occasions, and no" }, { "docid": "23389022", "title": "", "text": "[Joseph] was not under arrest and no Miranda warnings were given. Detective Ketchum, the deputy who interviewed [Joseph] this time, testified [Joseph’s] statements were voluntary and he was free to leave at any time. A fourth interview with [Joseph] was conducted after his arrest on the evening of July 4, 1990. He was informed of his rights which he chose to waive, and consented to the interview. Joseph I, 1993 WL 531858, at *31 (emphasis added). Before this court, Joseph challenges only the third statement, the facts of which are emphasized in the quoted passage. Miranda “held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence.” Dickerson v. United States, 530 U.S. 428, 431-32, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). There is no doubt that Joseph was interrogated by Detective Ketchum for purposes of Miranda. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (“[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (footnote omitted)). And it is undisputed that Joseph was not given Miranda warnings before being interrogated. The critical question in the instant case, then, is whether Joseph was in custody, which under clearly established Supreme Court precedent depends on “whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)); see also Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (“[W]ould a reasonable person have felt he or she was" }, { "docid": "10886445", "title": "", "text": "were violated by the officers’ using a two-step interrogation procedure that rendered his Miranda warning ineffective. Specifically, he alleges that because the officers asked Lee questions on various “incriminating topics,” read him his Miranda rights and then continued to question him without informing him that the statements he made before his Miranda rights were read could not be used against him, they had used an illegal, two-part interrogation procedure. However, the procedure employed by the officers was not a two-step procedure because the questions asked before the Miranda rights were read to Lee may not permissibly be considered part of the interrogation. A district court’s ultimate decision to admit a confession is ordinarily reviewed de novo, but the district court’s underlying fact findings are reviewed for clear error, especially when the suppression decision turns on the credibility of witnesses. United States v. Stewart, 536 F.3d 714, 719 (7th Cir.2008). The question whether the interrogating officer deliberately withheld Miranda warnings as part of a two-step interrogation process will invariably turn on the credibility of the officer’s testimony in light of the totality of the circumstances. Id. at 719-20. Miranda rights come into play when a person is in custody and subject to express questioning, or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also id. at 301, 100 S.Ct. 1682 (“The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”). Thus, a Miranda violation does not occur when officers question a defendant only to a limited extent for personal data required as part of the processing normally attendant to arrest and custody since these types of questions would not reasonably be expected to elicit incriminating responses. United States v. Kane, 726 F.2d 344, 349 (7th Cir.1984). In the present case, it is unclear from the record what specific questions were asked" }, { "docid": "22860212", "title": "", "text": "Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Thus two requirements must be met before Miranda is applicable; the suspect must be in “custody,” and the questioning must meet the legal definition of “interrogation.” The Supreme Court has instructed that a person has been taken into police custody whenever he “has been deprived of his freedom of action in any significant way.” Id., 384 U.S. at 444, 86 S.Ct. at 1612. The Court has also stated that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curium). The only relevant inquiry is “how a reasonable man in the suspect’s position would have understood his situation.” United States v. Berkemer, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). The Berkemer opinion indicates that a suspect can be placed in police “custody” for purposes of Miranda before he has been “arrested” in the Fourth Amendment sense. Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151. See also United States v. Smith, 3 F.3d at 1097 (7th Cir.1993) (“Berkemer thus underscores that Fifth and Sixth Amendment rights are implicated before a defendant has been arrested.”). The second requirement is that the suspect must have been subjected to “interrogation.” The Court has explained that interrogation includes “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (footnotes omitted). The traditional view, consistent with the district court’s conclusion, is that Miranda warnings are simply not implicated in the context of a valid Terry stop. United States v. Streifel, 781 F.2d 953, 958 (1st Cir.1986) (“As a general rule, Terry stops do not implicate the requirements of Miranda....\"); United States v. McGauley, 786 F.2d 888, 891 (8th Cir.1986) (no Miranda warning" }, { "docid": "23637548", "title": "", "text": "463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1988)). “Interrogation,” under Miranda “means ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” United States v. Gomez, 927 F.2d 1530, 1538 (11th Cir.1991) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). The Supreme Court has defined an “incriminating response” as “any response— whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Innis, 446 U.S. at 302 n. 5, 100 S.Ct. 1682 (emphasis omitted). Here, the parties do not dispute whether Lopez-Garcia was in custody at the time of the interview. Instead, they join issue over whether Diaz’s discussion with Lopez-Garcia amounted to an “interrogation” within the meaning of Miranda. That question boils down to whether Diaz should have known that his questions were reasonably likely to elicit an incriminating response from Lopez-Garcia. Under these circumstances, we do not believe that Diaz should have known that Lopez-Garcia was reasonably likely to make self-incriminating statements during the June 19 interview. To begin with, Diaz had no reason to believe that Lopez-Garcia would confess to having illegally reentered the country. Although Diaz was aware prior to the interview that Lopez-Garcia had not been born in the U.S., he had no reason to believe that Lopez-Garcia had been deported, and still less reason to believe that he had reentered the country illegally. Indeed, Diaz specifically testified to this effect at the suppression hearing. On cross-examination Diaz was asked: “So when you talk with a person regarding their immigration status, you recognized that it is possible you may be discussing criminal conduct with them, right?” Diaz responded: “Yes, but I do check before that, of course; I have to make sure none of that can happen. I did my checks and nothing came up.” Thus, Lopez-Garcia is simply incorrect in suggesting that Diaz’s questions were likely on their face to result in self-incrimination. Based" } ]

[ { "docid": "22586592", "title": "", "text": "services, and hand delivery. The foregoing must be modified by the right of prison officials to continue to screen all packages to afford protection to the prison employees and the addressee against any devices prohibited by appropriate federal or state laws or prison rules and/or regulations. Should screening detect the presence of any prohibited devices or instruments, any such packages may be opened for inspection outside the presence of the prisoner-addressee. The foregoing definition of “legal mail” as well as the language of Muhammad, 35 F.3d at 1083-84, dictates that in this case prison officials should have treated the legal materials delivered to Kensu as “legal mail” and, therefore, should not have examined the contents outside Kensu’s presence. Because there is not a genuine issue of material fact the proper disposition of this claim is clear under relevant law. However, to the extent Kensu seeks declaratory and injunctive relief his claims are now moot as he is no longer confined to the institution that searched his mail. As for Kensu’s claim seeking monetary relief, we must remand this issue to the district court for further review of Kensu’s claim for damages and of the defendants’ possible defense of qualified immunity. III. The defendants met their initial burden of showing an absence of evidence to support Kensu’s denial of access to the courts claim. Prison officials may not erect any barriers that impede an inmate’s access to the courts. Knop v. Johnson, 977 F.2d at 1009. An inmate who claims his access to the courts was denied fails to state a claim without any showing of prejudice to his litigation. McMaster v. Pung, 984 F.2d 948, 953 (8th Cir.1993); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). Kensu alleged that the defendants confiscated legal papers from his prison cell on August 10,1993. The defendants averred that they confiscated most of Kensu’s legal papers on August 10 because his legal materials filled eight footlockers and posed a potential hazard if quick departure from the cell was required. Kensu was still able to request portions of his legal materials and they were" } ]

[ { "docid": "5398658", "title": "", "text": "ents several other issues as well. Except as indicated below, we shall affirm the judgment of the district court as to each of the remaining issues presented in Knop. I The plaintiff class that was certified in Knop consists of prisoners at the State Prison of Southern Michigan at Jackson, the Marquette Branch Prison, the Michigan Reformatory at Ionia, and the Riverside Correctional Facility, also located in Ionia. Knop v. Johnson, 667 F.Supp. 467, 469 (W.D.Mich.1987). With the exception of the prisoners at Riverside and the Central Complex at Jackson, the Knop class evidently corresponds to that certified in Walker v. Johnson, 544 F.Supp. 345 (E.D.Mich.1982), aff'd in part and rev’d in part sub nom. Walker v. Mintzes, 771 F.2d 920 (6th Cir.1985). One of the claims advanced in Walker was that the Michigan authorities had “violated plaintiffs’ equal protection clause right to meaningful access to the courts as established in the Supreme Court case of Bounds v. Smith.” 544 F.Supp. at 361. The district court acknowledged in Walker that Michigan’s prison law library facilities were adequate, but found that a cutback in library hours following a series of prison riots had unlawfully restricted access to the libraries. Id. The district court ordered that library hours be increased. On appeal, this court observed that there had been no showing that any prisoner had actually been denied access to the courts or had actually been prejudiced in a lawsuit. 771 F.2d at 932. We reversed the order in which the district court had specified hours of operation for prison libraries, and we directed the court to consider, on remand, “whether adequate access to court has been denied any prisoner.” Id. Although the Walker case was remanded to the Eastern District of Michigan, access to courts was one of the issues litigated in a 35-day bench trial conducted by Judge Enslen, of the Western District of Michigan, in Knop. The parties did not inform Judge Enslen that the access to courts issue had.been remanded to another court, and it was only in preparing his opinion that he focused on this. See 667" }, { "docid": "12911287", "title": "", "text": "that he ever started to prepare a draft pleading nor how the restrictions on access during those 57 days prevented him from preparing and completing a pleading. As with his other claim, he has failed to show how the limited access to legal materials while in segregation actually denied him access to the courts to collaterally attack his conviction. CONCLUSION A prisoner must allege and show that denial of reasonable access to a law library caused an actual injury to access to courts in order to have a viable claim against prison officials under 42 U.S.C. § 1983. Appellant did not show a specific instance in which he was actually denied access to the courts, and summary judgment was properly entered against him. AFFIRMED. . Vandelft joins the dissent in arguing that the majority \"over-reads” Johnson v. Moore. However, Johnson does support our holding here. The case involved a claim of an inadequate library, which requires no showing of injury, and a claim of inadequate access to the library. We said the prisoner had not shown actual injury. We think the application of Johnson to this case is clear. . As in this case, the district court considering the inmate's claim may find it more convenient to address the adequacy of the allegation or showing of actual injury prior to deciding whether the access was adequate. CANBY, Circuit Judge, dissenting: With all due respect, I cannot agree with the majority’s conclusion that Vandelft is required to show “actual injury” in the form of a specific instance of denial of access to court, to maintain his section 1983 due process claim. As the majority opinion acknowledges, our court has held that no showing of “actual injury” is required when there is a failure of prison authorities to meet at least one of the two “core requirements” of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989). Those two core requirements are the alternatives of “providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”" }, { "docid": "1286268", "title": "", "text": "the plaintiffs have not yet established their entitlement to a remedy, we cannot pass on the appropriateness of the specific remedy ordered by the district court, but we AFFIRM the district court’s grant of a preliminary injunction to the plaintiffs in order to maintain the status quo until a hearing on the merits can be concluded and a new determination made. DISSENT . The requirement of showing actual injury to prove a Bounds violation, the Lewis court emphasized, \"derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches.” Lewis, 116 S.Ct. at 2179. . In Lewis, the prisoners were able to establish only two instances of actual injury as defined by the Supreme Court. Lewis, 116 S.Ct. at 2178-79. . If the named plaintiffs are no longer incarcerated within the Michigan Department of Corrections, their claims are now .moot. Mootness of the original named plaintiffs' claims, however, does not moot the class action, provided a live controversy remains between the defendants and the plaintiff classes. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404, 445 U.S. 388, 63 L.Ed.2d 479 (1980); Franks v. Bowman Transp. Co., 424 U.S. 747, 753, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Sosna v. Iowa, 419 U.S. 393, 401-02, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). In the context of an access to courts case under Lewis, named plaintiffs with mooted claims no longer constitute appropriate class representatives under Federal Rule of Civil Procedure 23. To satisfy concerns raised under Rule 23, the appropriate solution would be for the district court to allow for the substitution of class representatives with live claims, asserting actual injury as defined under Lewis. RALPH B. GUY, JR., Circuit Judge, dissenting. In Knop v. Johnson, 977 F.2d 996, 999 (6th Cir.1992), an earlier appeal in this case, we determined that “we are satisfied that there are at least some Michigan prisoners who have been denied the type of access to the courts required under current Supreme Court doctrine.” (Emphasis added.) The underpinning for this conclusion" }, { "docid": "1286261", "title": "", "text": "II. Standing: “Actual Injury” Under Lewis v. Casey In Knop v. Johnson, the earlier appeal in this case, we determined that “there are at least some Michigan prisoners who have been denied the type of access to the courts required under current Supreme Court doctrine.” Knop, 977 F.2d at 999. The underpinning for this conclusion was the Supreme Court’s decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 62 L.Ed.2d 72 (1977), in which the Court held that the fundamental constitutional right of access to the courts requires prison authorities to assist prisoners in the preparation and filing of meaningful legal papers by providing them with adequate law libraries or adequate assistance from persons trained in the law. In the intervening opinion in Lewis v. Casey, however, the Supreme Court reexamined Bounds and considerably narrowed its holding. Ruling that Bounds did not create an abstract, free-standing right to access to a law library or to legal assistance, the Court held that to establish standing, an inmate must demonstrate an “actual injury,” which, the Court said, cannot be shown “simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense.” Lewis, 116 S.Ct. at 2180. Instead, the Court held, “the inmate ... must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a [non-frivolous] legal claim.” Moreover, when the plaintiffs in a Bounds action are a class of inmates alleging a systemic violation of their right of access to the courts, under Leiois they must show “widespread actual injury.” Id. at 2179. The Court made it clear that the “[district] court’s failure to identify anything more than isolated instances of actual injury renders its finding of a systemic Bounds violation invalid.” Id. The defendants contend, therefore, that under current Supreme Court doctrine, the injunctive relief granted by the district court should be vacated for failure to establish the degree of actual injury required by Lewis. Moreover, they argue that under the terms of the PLRA, the action should be" }, { "docid": "1286270", "title": "", "text": "was the Supreme Court’s decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Recently, the Supreme Court has revisited Bounds and considerably narrowed its holding. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (because Bounds did not create an abstract free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense). In recognition of the narrowing of Bounds by Lewis, the court in this appeal concludes that the Lewis “ ‘actual injury’ requirement does differ from the one used by this court[J” Since in Knop we did conclude that entitlement to a remedy had been established, this statement can only mean that Lewis requires us to now repudiate the conclusion reached in Knop. On this point, I am in complete agreement with the court. Where I part company with the majority, however, is in the ordering of a remand to allow the plaintiffs another opportunity to establish “actual injury.” The defendants have advanced a proposal that is designed to provide meaningful access to the courts. In response, the plaintiffs have done exactly what Lewis says they cannot do. Although Bounds itself made no mention of an actual-injury requirement, it can hardly be thought to have eliminated that constitutional prerequisite. And actual injury is apparent on the face of almost all the opinions in the 35-year line of access-to-courts cases on which Bounds relied. Moreover, the assumption of an actual-injury requirement seems to us implicit in the opinion’s statement that “we encourage local experimentation” in various methods of assuring access to the courts. One such experiment, for example, might replace libraries with some minimal access to legal advice and a system of court-provided forms such as those that contained the original complaints in two of the more significant inmate-initiated cases in recent years, Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117" }, { "docid": "21195783", "title": "", "text": "be opened only in his presence. Id. at 874-75. The Sixth Circuit had previously found that this opt-in policy was sound. Id. at 874 (citing Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir.1992)). Al-Amin made such a request. . In Lemon, defendant-prison officials did not contest the prisoner’s constitutional right not to have his mail read, but claimed that they had probable cause to read the mail and that this probable cause trumped Lemon's constitutional right not to have his mail read. Id. at 1468. In rejecting this claim, Lemon relied on Taylor's holding \"that it was a violation of an inmate's constitutional rights for the prison officials to read legal mail.” Id. at 1467 (emphasis added). . The Supreme Court in Casey explained that the actual injury requirement in access-to-courts cases \"derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches.” Casey, 518 U.S. at 349, 116 S.Ct. at 2179. The Supreme Court explained that \"[i]t is the role of courts to provide relief to claimants ... who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Id. The Supreme Court added that \"the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly.” Id. at 350, 116 S.Ct. at 2179. . Other circuits also require actual injury to pursue a legal mail access-to-courts claim as a constitutional prerequisite under Casey. See, e.g., Kaufman, 419 F.3d at 686; Simkins v. Bruce, 406 F.3d 1239, 1243-44 (10th Cir.2005); Oliver, 118 F.3d at 177-78. In Bieregu, 59 F.3d at 1455, the Third Circuit had held that a showing of actual injury was not required but in Oliver, it concluded that the Supreme Court's decision in Casey \"ha[d]" }, { "docid": "3506762", "title": "", "text": "to pursue that avenue when he declined to specify for the Project the nature of his legal problem. Under these circumstances, having given Messere access to neither assistance by persons trained in the law nor adequate Massachusetts legal materials, the DOC cannot be deemed to have provided meaningful access to the Massachusetts courts within the contemplation of Bounds v. Smith. B. Prejudice The DOC, however, contends that Messere must show more than lack of access. The defendants argue that he must also show he was prejudiced by the lack of access. The Supreme Court in Bounds v. Smith gave no indication that a showing of prejudice is required where the fundamental right of access to the courts has been violated. Nonetheless, some courts have appeared to require prejudice to be demonstrated as an element of a right-to-access claim. For example, in Langton v. Fair, Civ. # 87-0430-Z, 1988 WL 55379 (D.Mass. May 23, 1988), Judge Zobel noted that although “the First Circuit has yet to determine whether a showing of prejudice is a necessary element of a successful claim for denial of access to courts,” slip op. at 3 (citation omitted), “courts in other circuits have adopted the approach in Twyman v. Crisp, 584 F.2d 352 (10th Cir.1978)”, id., which provided that if the plaintiff “could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.” Twyman v. Crisp, 584 F.2d at 357. The suggestion that actual prejudice is a necessary element of. a Bounds claim presents significant analytical difficulties. Because of those difficulties, I decline to hold that proof of a violation of the constitutional right of access requires a showing of actual prejudice. The right of access to the courts is an aspect of due process. “The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.” Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224" }, { "docid": "1286260", "title": "", "text": "Id. Furthermore, “the district court’s weighing and balancing of the equities is overruled only in the rarest of cases.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir.1997). In the cases at bar, the district court granted not only the preliminary injunction but also final injunctive relief, because the court found that the plaintiffs had already established the defendants’ liability in Knop v. Johnson, 977 F.2d at 1006. We review de novo the legal determinations underlying the district court’s decision to order final relief, and we review the court’s factual findings for clear error. One factor in assessing the appropriateness of the district court’s grant of a preliminary injunction is the likelihood of success of the underlying lawsuit (in which plaintiffs seek permanent injunctive relief). Therefore, because our conclusions with regard to the district court’s legal basis for ordering final injunctive relief in this case will bear on our decision regarding the district court’s grant of a preliminary injunction, we consider the court’s decision regarding permanent injunctive relief first. II. Standing: “Actual Injury” Under Lewis v. Casey In Knop v. Johnson, the earlier appeal in this case, we determined that “there are at least some Michigan prisoners who have been denied the type of access to the courts required under current Supreme Court doctrine.” Knop, 977 F.2d at 999. The underpinning for this conclusion was the Supreme Court’s decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 62 L.Ed.2d 72 (1977), in which the Court held that the fundamental constitutional right of access to the courts requires prison authorities to assist prisoners in the preparation and filing of meaningful legal papers by providing them with adequate law libraries or adequate assistance from persons trained in the law. In the intervening opinion in Lewis v. Casey, however, the Supreme Court reexamined Bounds and considerably narrowed its holding. Ruling that Bounds did not create an abstract, free-standing right to access to a law library or to legal assistance, the Court held that to establish standing, an inmate must demonstrate an “actual injury,” which, the" }, { "docid": "3506763", "title": "", "text": "of a successful claim for denial of access to courts,” slip op. at 3 (citation omitted), “courts in other circuits have adopted the approach in Twyman v. Crisp, 584 F.2d 352 (10th Cir.1978)”, id., which provided that if the plaintiff “could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.” Twyman v. Crisp, 584 F.2d at 357. The suggestion that actual prejudice is a necessary element of. a Bounds claim presents significant analytical difficulties. Because of those difficulties, I decline to hold that proof of a violation of the constitutional right of access requires a showing of actual prejudice. The right of access to the courts is an aspect of due process. “The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.” Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). The First Circuit has deemed the right of access a fundamental right derived from various constitutional sources including the due process clause, the privileges and immunities clause, and the First Amendment. Simmons v. Dickhaut, 804 F.2d 182, 183 (1st Cir.1986). Claims of violation of the constitutional right of due process, including court access — or other fundamental constitutional rights — do not require proof of actual injury. Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 829 (1st Cir.1987); Duffy v. Quattrocchi, 576 F.Supp. 336, 341 (D.R.I.1983). In the First Amendment context, for example, courts do not ask whether a speaker will be prejudiced because he cannot get his message across, but rather ask simply whether his constitutional right has been infringed. Actual injury is an essential element only in the determination of damages. As the Supreme Court has explained, By making the deprivation of [certain “absolute”] rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same" }, { "docid": "23009776", "title": "", "text": "courts’’); Crowder v. Sinyard, 884 F.2d 804, 812 n. 8 (5th Cir.1989) (reading Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983), as requiring a showing of prejudice), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985) (actual impediment in access to courts); Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir.1983) (\"interference with or infringement of the prisoner’s constitutional right of access to the courts” (internal quotations omitted)); Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.1982) (\"instance in which an inmate was actually denied access to the courts” (internal quotations omitted)); Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978) (no allegation \"that any of [plaintiff's] multitudinous filings have been stricken as untimely or that any of his cases have been dismissed or otherwise prejudiced”). . The generalized nature of this allegation is underscored by the similar character of passages from Strickler’s complaint in which he alleges injury. See J.A. at 13 (\"Inmates here are denied ... adequate access to the law library because of the overcrowded conditions.”); id. at 17 (Plaintiff \"has learned since he has been at a state prison and had access to more adequate legal research material that the violation of his rights has been much more severe than he first thought_”); id. at 19 (Plaintiff \"is certain he would not be in prison for this charge now had he had access to adequate legal research while he was incarcerated in Portsmouth jail.’’). . That Strickler was not prejudiced by any claimed lack of access resulting in his failure to name as a defendant the Director is further apparent from the fact that his equal protection claim itself plainly lacked merit. See infra Part IV.B. .In Peterkin, the Third Circuit held that where a prisoner brings \"an access to the courts claim that alleges the inadequacy of law libraries or alternative sources of legal knowledge1 the analysis of whether an actual constitutional injury exists is simply the Bounds analysis.\" 855 F.2d at 1041 (citations and footnote omitted). The holding in Peterkin, however, was" }, { "docid": "1286263", "title": "", "text": "remanded to the district court with instructions to dismiss the case, conditioned upon the state putting into effect the remedial plan it offered to the court. The plaintiffs argue, and the district court held, that the Supreme Court’s decision in Lewis did not change the law in this circuit, but merely resolved a split among the circuits concerning whether actual injury is required to establish liability in a lawsuit alleging a violation of the right of access to the courts. Leiois arose from the Ninth Circuit, which was among the circuits that had previously held that no proof of actual injpry was required in lawsuits involving core aspects of the right of access to the courts. See Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989). The Sixth Circuit, on the other hand, had held that no constitutional violation exists in any case if “no particular prisoner was actually impeded in his access to the courts.” Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). In Walker, the plaintiffs claimed that they were not given adequate access to legal materials, and we remanded the case for a determination of whether the denial of access had actually caused any prisoner harm. We explained that “ ‘[i]f appellant [the prisoner] could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.’ ” Id. (quoting Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978)). In Knop, we cited the Walker standard with approval. 977 F.2d at 1000. Just before the Lewis opinion was issued, we again confirmed our position that a prisoner who does not show any prejudice fails to state a claim that prison officials denied him access to the courts. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996). The plaintiffs contend that because the Sixth Circuit’s “actual injury” requirement is the same as the Lewis v. Casey “actual injury” requirement, we should follow the law of the case and leave undisturbed our finding of actual injury in Knop, 977 F.2d at 1000. The district court agreed and held that “[the plaintiffs]" }, { "docid": "1286262", "title": "", "text": "Court said, cannot be shown “simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense.” Lewis, 116 S.Ct. at 2180. Instead, the Court held, “the inmate ... must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a [non-frivolous] legal claim.” Moreover, when the plaintiffs in a Bounds action are a class of inmates alleging a systemic violation of their right of access to the courts, under Leiois they must show “widespread actual injury.” Id. at 2179. The Court made it clear that the “[district] court’s failure to identify anything more than isolated instances of actual injury renders its finding of a systemic Bounds violation invalid.” Id. The defendants contend, therefore, that under current Supreme Court doctrine, the injunctive relief granted by the district court should be vacated for failure to establish the degree of actual injury required by Lewis. Moreover, they argue that under the terms of the PLRA, the action should be remanded to the district court with instructions to dismiss the case, conditioned upon the state putting into effect the remedial plan it offered to the court. The plaintiffs argue, and the district court held, that the Supreme Court’s decision in Lewis did not change the law in this circuit, but merely resolved a split among the circuits concerning whether actual injury is required to establish liability in a lawsuit alleging a violation of the right of access to the courts. Leiois arose from the Ninth Circuit, which was among the circuits that had previously held that no proof of actual injpry was required in lawsuits involving core aspects of the right of access to the courts. See Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989). The Sixth Circuit, on the other hand, had held that no constitutional violation exists in any case if “no particular prisoner was actually impeded in his access to the courts.” Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). In Walker, the plaintiffs claimed that they were not given adequate" }, { "docid": "1286265", "title": "", "text": "have already established the defendants’ liability for a constitutional violation.” Having found liability, the district court then proceeded to consider the appropriateness of the remedy. After careful study of these cases, we conclude that the Lewis “actual injury” requirement does differ from the one used by this court in Walker and Knop. In Walker, we held that a prisoner might have a “legitimate claim” if he could show that he had “somehow been prejudiced in any of his various lawsuits,” 771 F.2d at 932, whereas in Lewis the Supreme Court held that only prisoners with non-frivolous underlying claims can have standing to litigate an access-to-courts action. Lewis, 116 S.Ct. at 2181 & n. 3. By explicitly requiring that plaintiffs show actual prejudice to non-frivolous claims, Lewis did in fact change the “actual injury” requirement as it had previously been applied in this circuit. In cases prior to Lewis, such as Knop and Walker, we did not mention nor make any findings with regard to the validity of the underlying claims that had allegedly been impeded in their presentation by the inadequacies in the prison’s legal access program. It is also apparent from the evidence in the present case that no such requirement was imposed by the district court in reviewing the record for actual injury. Because it is impossible to determine from the record now before us whether the underlying claims were in fact non-frivolous, we conclude that we must remand this case (yet again) for factual findings on this issue. It will be necessary for the district court to determine, first, whether any of the named plaintiffs are still incarcerated and active in the lawsuit and, second, whether they have suffered “actual injury.” If the record fails to establish standing under Lewis, the action must be dismissed. If actual injury can be demonstrated, the district court must determine whether that injury is widespread among the class of plaintiffs. If the record fails to establish widespread injury, the district court should dismiss the action as to all but the named plaintiffs who have established actual injury. III. Remedy Without a" }, { "docid": "23071688", "title": "", "text": "At the Jackson Northside Complex, the court ordered that inmates be assured access of four and one-half hours per week. We are concerned with a right of access to the courts, not necessarily to a prison law library. There is no claim made here that any particular prisoner was actually impeded in his access to the courts. Rather, the inmates claim a general constitutional right to some minimum amount of time in the prison law library. We doubt that this constitutional claim is substantiated under the Bounds rationale. In Twyman v. Crisp, 584 F.2d 352 (10th Cir.1978), a prisoner who was allowed use of the prison law library only two hours per week claimed that he had been denied adequate access under Bounds. The court found no constitutional deficiency in light of the fact that the prisoner possessed the legal material he needed to pursue his claim. “If appellant [the prisoner] could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.” Id. at 357. Twyman could not, however, establish that he himself had ever been impeded in attempting to gain access to the courts within the applicable principles: [Restricted access to the law library is not per se denial of access to the courts. United States v. Evans, 542 F.2d 805 (10th Cir.1976). Nor do either Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971) or Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) equate access to the courts with the adequacy of a prison law library. The prison library is but one factor in the totality of all factors bearing on the inmates’ access to the courts which should be considered. Hampton v. Schauer, 361 F.Supp. 641 (D.Colo.1973). s¡< }H # # * * It has also been held that prison regulations which reasonably limit the times, places, and manner in which inmates may engage in legal research and preparation of legel papers do not transgress the constitutionally protected rights so long as the regulations do not frustrate access" }, { "docid": "23071687", "title": "", "text": "access need only be reasonable and adequate. The district court found that at Marquette, inmates have access to a law library on a “detailed basis only,” totalling six hours per week. At the Jackson North-side Complex, inmates commonly were given only one hour per week library time, and at a maximum four and one-half hours per week; a drastic cut from the pre-riot twelve to fifteen hours per week allowance. Similarly, at the Central Complex, inmates were found to receive only two hours per week of library time, down from the preriot allotment of eleven hours per week. At Ionia, inmates received only one hour of library time per week, whereas before they received ten hours of library time per week, along with relatively free access to jailhouse lawyers. The court ordered that Marquette restore library access hours to pre-riot levels, although access could remain on a detailed basis. At Jackson Central and Ionia, the court also ordered that access be restored to pre-riot levels (eleven hours per week and ten hours per week respectively). At the Jackson Northside Complex, the court ordered that inmates be assured access of four and one-half hours per week. We are concerned with a right of access to the courts, not necessarily to a prison law library. There is no claim made here that any particular prisoner was actually impeded in his access to the courts. Rather, the inmates claim a general constitutional right to some minimum amount of time in the prison law library. We doubt that this constitutional claim is substantiated under the Bounds rationale. In Twyman v. Crisp, 584 F.2d 352 (10th Cir.1978), a prisoner who was allowed use of the prison law library only two hours per week claimed that he had been denied adequate access under Bounds. The court found no constitutional deficiency in light of the fact that the prisoner possessed the legal material he needed to pursue his claim. “If appellant [the prisoner] could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.” Id. at 357." }, { "docid": "1286251", "title": "", "text": "in April 1996. We conclude that these cases should be remanded for factual findings and a determination on the merits consistent with this opinion. Because of the necessity of a remand, we leave undisturbed the preliminary injunction ordered by the district court. FACTUAL AND PROCEDURAL HISTORY This lawsuit began over 15 years ago, in 1982, when the Michigan Department of Corrections (MDOC) threatened to stop funding Prisoners’ Legal Services of Michigan (PLSM). PLSM had been established in 1976 by grants from the State Bar of Michigan and the Law Enforcement Assistance Administration, and in 1978 the MDOC began voluntarily funding the office. In 1982, the District Court for the Eastern District of Michigan issued a preliminary injunction ordering the MDOC to maintain funding for PLSM until further order of the court, and in 1988 the court found that the plaintiffs’ right of access to the courts was being violated and ordered modifications to PLSM. Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich.1988), rev’d, Knop v. Johnson, 977 F.2d 996 (6th Cir.1992). Hadix required the MDOC to provide attorneys for prisoners as a matter of law. Id. at 293. Prisoners at several facilities not covered by the Hadix lawsuit brought a separate action against prison officials in the Western District of Michigan in which they alleged, among other things, the denial of their right of access to the courts. The district court granted them relief as well. Knop v. Johnson, 667 F.Supp. 467 (W.D.Mich.1987) (finding of liability); 685 F.Supp. 636 (W.D.Mich.1988) (remedial order), rev’d, Knop v. Johnson, 977 F.2d 996 (6th Cir.1992). We reviewed the two district court cases on consolidated appeal and affirmed the courts’ conclusion that the defendants’ legal access system, while sufficient for prisoners capable of making effective use of legal materials, was constitutionally insufficient for prisoners who “cannot read and write English, or who lack the intelligence necessary to prepare coherent pleadings, or who, because of protracted confinement in administrative or punitive segregation or protective custody, may not be able to identify the books they need.” Knop, 977 F.2d at 1005-06. In arriving at the conclusion that “something" }, { "docid": "1286269", "title": "", "text": "the plaintiff classes. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404, 445 U.S. 388, 63 L.Ed.2d 479 (1980); Franks v. Bowman Transp. Co., 424 U.S. 747, 753, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Sosna v. Iowa, 419 U.S. 393, 401-02, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). In the context of an access to courts case under Lewis, named plaintiffs with mooted claims no longer constitute appropriate class representatives under Federal Rule of Civil Procedure 23. To satisfy concerns raised under Rule 23, the appropriate solution would be for the district court to allow for the substitution of class representatives with live claims, asserting actual injury as defined under Lewis. RALPH B. GUY, JR., Circuit Judge, dissenting. In Knop v. Johnson, 977 F.2d 996, 999 (6th Cir.1992), an earlier appeal in this case, we determined that “we are satisfied that there are at least some Michigan prisoners who have been denied the type of access to the courts required under current Supreme Court doctrine.” (Emphasis added.) The underpinning for this conclusion was the Supreme Court’s decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Recently, the Supreme Court has revisited Bounds and considerably narrowed its holding. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (because Bounds did not create an abstract free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense). In recognition of the narrowing of Bounds by Lewis, the court in this appeal concludes that the Lewis “ ‘actual injury’ requirement does differ from the one used by this court[J” Since in Knop we did conclude that entitlement to a remedy had been established, this statement can only mean that Lewis requires us to now repudiate the conclusion reached in Knop. On this point, I am in complete agreement with the court. Where I part company with the majority, however, is in the ordering of a remand to allow" }, { "docid": "21195782", "title": "", "text": "where defendants opened one piece of prisoner’s constitutionally protected legal mail by accident, \"[sjuch an isolated incident, without any evidence of im proper motive or resulting interference with Smith’s right to counsel or to access to the courts, does not give rise to a constitutional violation”). . The Third Circuit acknowledged that its conclusion differed from the Fifth Circuit's Brewer decision, but that its own conclusion \"comports with the results reached by the majority of courts of appeals to consider these precise or similar issues.” Bieregu, 59 F.3d at 1458. . The Sixth Circuit noted that \"[n]ot all mail that a prisoner receives from a legal source will implicate constitutionally protected legal mail rights,” but when it does, \"we must balance the interest of prison security against the possibility of tampering that could unjustifiably chill the prisoner's right of access to the courts or impair the right to be represented by counsel.” Sallier, 343 F.3d at 874. .In Sallier, the prison system's policy required that a prisoner make a written request that his legal mail be opened only in his presence. Id. at 874-75. The Sixth Circuit had previously found that this opt-in policy was sound. Id. at 874 (citing Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir.1992)). Al-Amin made such a request. . In Lemon, defendant-prison officials did not contest the prisoner’s constitutional right not to have his mail read, but claimed that they had probable cause to read the mail and that this probable cause trumped Lemon's constitutional right not to have his mail read. Id. at 1468. In rejecting this claim, Lemon relied on Taylor's holding \"that it was a violation of an inmate's constitutional rights for the prison officials to read legal mail.” Id. at 1467 (emphasis added). . The Supreme Court in Casey explained that the actual injury requirement in access-to-courts cases \"derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches.” Casey, 518 U.S. at 349, 116 S.Ct. at 2179. The Supreme Court explained that \"[i]t is the role of" }, { "docid": "23009775", "title": "", "text": "also its relation to the allegedly unconstitutional condition. .Most federal courts of appeals have imposed an \"injury\" requirement on prisoners raising access to courts claims. See, e.g., Shango v. Jurich, 965 F.2d 289, 292 (7th Cir.1992) (“some quantum of detriment caused by the challenged conduct of state officials resulting in the interruption and/or delay of plaintiff’s pending or contemplated litigation”); Crawford-El v. Britton, 951 F.2d 1314, 1322 (D.C.Cir.1991) (deprivation must be linked to an \"adverse litigation effect\"), cert. denied,-U.S.-, 113 S.Ct. 62, 121 L.Ed.2d 29 (1992); Sowell v. Vose, 941 F.2d 32, 35 (1st Cir.1991) (\"actual, meaningful impediment to [plaintiff’s] participation in the [legal] process\"); Chandler v. Baird, 926 F.2d 1057, 1062 (11th Cir.1991) (no denial where plaintiff demonstrated \"no relation between the alleged refusals of materials, depositions, telephone calls, mail, and even pen and paper for a proposed 'letter to the courts’ and any legal proceeding which could have been affected by the refusals”); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) (\"specific instance in which [plaintiff] was actually denied access to the courts’’); Crowder v. Sinyard, 884 F.2d 804, 812 n. 8 (5th Cir.1989) (reading Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983), as requiring a showing of prejudice), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985) (actual impediment in access to courts); Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir.1983) (\"interference with or infringement of the prisoner’s constitutional right of access to the courts” (internal quotations omitted)); Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.1982) (\"instance in which an inmate was actually denied access to the courts” (internal quotations omitted)); Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978) (no allegation \"that any of [plaintiff's] multitudinous filings have been stricken as untimely or that any of his cases have been dismissed or otherwise prejudiced”). . The generalized nature of this allegation is underscored by the similar character of passages from Strickler’s complaint in which he alleges injury. See J.A. at 13 (\"Inmates here are denied ... adequate access to the law" }, { "docid": "1286264", "title": "", "text": "access to legal materials, and we remanded the case for a determination of whether the denial of access had actually caused any prisoner harm. We explained that “ ‘[i]f appellant [the prisoner] could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.’ ” Id. (quoting Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978)). In Knop, we cited the Walker standard with approval. 977 F.2d at 1000. Just before the Lewis opinion was issued, we again confirmed our position that a prisoner who does not show any prejudice fails to state a claim that prison officials denied him access to the courts. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996). The plaintiffs contend that because the Sixth Circuit’s “actual injury” requirement is the same as the Lewis v. Casey “actual injury” requirement, we should follow the law of the case and leave undisturbed our finding of actual injury in Knop, 977 F.2d at 1000. The district court agreed and held that “[the plaintiffs] have already established the defendants’ liability for a constitutional violation.” Having found liability, the district court then proceeded to consider the appropriateness of the remedy. After careful study of these cases, we conclude that the Lewis “actual injury” requirement does differ from the one used by this court in Walker and Knop. In Walker, we held that a prisoner might have a “legitimate claim” if he could show that he had “somehow been prejudiced in any of his various lawsuits,” 771 F.2d at 932, whereas in Lewis the Supreme Court held that only prisoners with non-frivolous underlying claims can have standing to litigate an access-to-courts action. Lewis, 116 S.Ct. at 2181 & n. 3. By explicitly requiring that plaintiffs show actual prejudice to non-frivolous claims, Lewis did in fact change the “actual injury” requirement as it had previously been applied in this circuit. In cases prior to Lewis, such as Knop and Walker, we did not mention nor make any findings with regard to the validity of the underlying claims that had allegedly been impeded" } ]

[ { "docid": "23050512", "title": "", "text": "United States v. Outland, 476 F.2d 581, 583 (6th Cir.1973); United States ex rel. Beal v. Skaff, 418 F.2d 430, 432-34 (7th Cir.1969); Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221 (1981); Johnson v. State, 617 P.2d 1117 (Alaska 1980); State v. Cox, 110 Ariz. 603, 522 P.2d 29 (1974); People v. Glen, 30 N.Y.2d 252, 282 N.E.2d 614, 331 N.Y.S.2d 656 (1972). Significantly, although not expressly reaching the constitutional issue, we too have upheld a search based on an anticipatory warrant that was conditioned upon the controlled delivery of narcotics. United States v. Segovia, 800 F.2d 39 (2d Cir.1986). Courts — though not yet the Supreme Court, to be sure — have upheld the anticipatory warrant, in large part, because they see it as desirable, whenever possible, for police to obtain judicial approval before searching private premises. Indeed, the fourth amendment mandates that, with few exceptions, a warrant be obtained before any search of a dwelling occurs. See Skinner v. Railway Labor Executives Ass’n, — U.S. -, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989). Yet, one of the major practical difficulties that confronts law enforcement officials is the time required to obtain a warrant. In many instances, the speed with which government agents are required to act, “especially when dealing with the furtive and transitory activities of persons who traffic in narcotics”, W. LaFave, Search and Seizure 700 (1978) (citation omitted), demands that they proceed without a warrant or risk losing both criminal and contraband. Led by the Supreme Court, federal courts have, of course, recognized an exception to the warrant requirement when “exigent circumstances” exist, but we have narrowly limited this exception. United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); United States v. Zabare, 871 F.2d 282 (2d Cir.1989); Melear v. Spears, 862 F.2d 1177 (5th Cir.1989); United States v. Clement, 854 F.2d 1116 (8th Cir.1988); United States v. Spinelli, 848 F.2d 26 (2d Cir.1988). The question thus posed by this case— and by any challenge to a warrant that is issued in anticipation of delivery of an item upon" } ]

[ { "docid": "23512424", "title": "", "text": "have required that the conditions upon which anticipatory warrants become effective be “explicit, clear, and narrowly drawn.” Ricciardelli 998 F.2d at 12 (quoting Garcia, 882 F.2d at 703-04). That said, however, we do not find any fatal flaw in the warrant’s description. First, the law’s requirement with respect to specificity of time must be one of reasonable specificity. Glen, 331 N.Y.S.2d at 661, 282 N.E.2d at 619 (warrant should require search to be “reasonably contemporaneous” with arrival of contraband); 2 LaFave, supra, § 3.7(c), at 99 & n. 103 (citing Glen). One can understand how a specificity requirement in respect to time, like those in respect to “place to be searched” or “things to be seized,” U.S. Const, amend. TV, might limit the discretion of law enforcement officers to decide when and where and what to search, thereby avoiding the “hated general writs of assistance of pre-Revolutionary times,” Glen, 331 N.Y.S.2d at 659, 282 N.E.2d at 617, and assuring the existence of “probable cause.” 2 LaFave, supra, § 3.7(c), at 99; id. § 4.5, at 207; id. § 4.6(a), at 236. But we know of no justification for a stricter standard in respect to specificity of time than in respect to the other two (constitutionally referenced) search parameters. Ricciardelli, while stating that the contraband must be on a “sure and irreversible course” to the place to be searched, 998 F.2d at 13, did not purport to set forth any special new rule requiring more specificity where time, rather than, sky, place, is at issue. To the contrary, Ricciardelli says that a warrant’s restrictions in respect to time and place should be “similar.” Id. at 12. Second, the law tells us that we are to read descriptions in warrants (and in their supporting documents), not “hypertechnieal[ly],” but in a “commonsense” fashion. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); see also, e.g., United States v. Bianco, 998 F.2d 1112, 1116-17 (2d Cir.1993); In re Grand Jury Subpoenas, 926 F.2d 847, 855 (9th Cir.1991); United States v. Antone, 753 F.2d 1301, 1307 (5th Cir.1985);" }, { "docid": "21583321", "title": "", "text": "The material defendant ordered was then sent from Newark to Inspector Northrop in Washington who in turn had the material delivered to defendant at his home by the United States Postal Service on June 10, 1987. The envelope was sealed, stamped and postmarked at the time of its delivery, which occurred at approximately 1:00 p.m. on June 10, 1987 and which was observed by postal inspectors. Thereafter, at about 4:00 p.m., postal inspectors executed a search warrant at defendant’s residence and recovered, inter alia, correspondence to and from Far Eastern Trading Company, a typewriter used by defendant to type letters to Far Eastern, and the two child pornography magazines delivered to defendant earlier in the day. Also recovered were a large volume of nudist and sexually explicit material depicting children as well as adults. (Footnotes omitted). II. Goodwin maintains that the search warrant issued by the magistrate was improper because the magazines had not yet been delivered to his house. He argues that such an “anticipatory” warrant violates the Fourth Amendment because probable cause to believe that the materials were at the house did not exist at the time the warrant issued. We believe the warrant was properly issued. Many courts have affirmed the validity of anticipatory warrants. See e.g., United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.), cert. denied 439 U.S. 869, 99 S.Ct. 198, 58 L.Ed.2d 180 (1978); United States v. Outland, 476 F.2d 581, 583 (6th Cir.1973); United States ex rel. Beal v. Skaff, 418 F.2d 430, 432-34 (7th Cir.1969); United States v. Feldman, 366 F.Supp. 356, 362 (D.Ha.1973); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (1972); Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682 (1970). But see United States v. Flippen, 674 F.Supp. 536, 538-41 (E.D.Va.1987) (finding anticipatory warrant improper because of lack of “exigent circumstances”) (dictum), appeal docketed, No. 88-5041 (4th Cir. Mar. 14, 1988). We agree with the analysis of the Ninth Circuit in United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.1986), which" }, { "docid": "4656802", "title": "", "text": "S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), the Court held, as a general matter, that Fourth Amendment probable cause determinations are to be reviewed de novo. “Having said this, [the Court] hasten[ed] to point out. that a reviewing eourt should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id. This circuit has recently acknowledged the application of Ornelas to Fourth Amendment warrant cases. United States v. Navarro, 90 F.3d 1245, 1251 (7th Cir.1996). Anticipatory search warrants are peculiar to property in transit. Such warrants are issued in advance of the receipt of particular “property” (usually contraband) at the premises designated in the warrant based on probable cause that the property will be located there at the time of the search. See United States v. Gendron, 18 F.3d 955, 964 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994). As one commentator put it: [A]s a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be searched at the place to be searched. 2 Wayne R. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.1987). This circuit has long recognized the constitutionality of such warrants. See United States ex rel. Beal v. Skaff, 418 F.2d 430, 434 (7th Cir.1969) [hereinafter Beal]. Illinois courts have likewise noted that “the objective of the fourth amendment is better served by allowing the police to obtain a warrant in advance of delivery, rather than have the police go to the scene and proceed under the exigent circumstances exception to the warrant requirement.” People v. Ross, 267 Ill.App.3d 711, 205 Ill.Dec. 49, 54, 642 N.E.2d 914, 919 (1994) (citations omitted).. While acknowledging that anticipatory search warrants are not per se unconstitutional, Leidner contends that the warrant here was unconstitutional because (1)" }, { "docid": "23512422", "title": "", "text": "at 10-11. In principle, the use of a “triggering event” can help assure that the search takes place only when justified by “probable cause”; and anticipatory warrants may thereby offer greater, not lesser, protection against unreasonable invasion of a citizen’s privacy. As one commentator has put it, as a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be searched at the place to be searched. 2 Wayne R. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed. 1987). Were “anticipatory warrants” unlawful, law enforcement agents would have to wait until the triggering event occurred; then, if time did not permit a warrant application, they would have to forego a legitimate search, or, more likely, simply conduct the search (justified by “exigent circumstances”) without any warrant at all. See Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 1971-1972, 26 L.Ed.2d 409 (1970); 2 LaFave, supra, § 6.5. We are not surprised that courts have found “anticipatory warrants,” considered as a class, perfectly consistent with the Constitution. E.g., Ricciardelli 998 F.2d at 10-11; United States v. Garcia, 882 F.2d 699, 703 (2d Cir.1989); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988); United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.1986); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 659, 282 N.E.2d 614, 617 (1972). Gendron argues, however, that the warrant’s reference to “delivery by mail to and receipt by Daniel Gendron” does not describe with sufficient clarity its “triggering event,” i.e., the particular time when it will take effect. We agree with Gendron that a warrant must clearly say when it takes effect. We also agree that a warrant that says it takes effect upon the occurrence of a future event runs a greater risk of ambiguity than a warrant that refers only to a specific day, month, and year (as do ordinary search warrants). That is why comets" }, { "docid": "23371885", "title": "", "text": "ANALYSIS I. ANTICIPATORY WARRANTS This court first considered the constitutionality of anticipatory warrants in United States v. Hugoboom, 112 F.3d 1081 (10th Cir.1997). In Hugoboom, the court joined the majority of other circuits in holding that anticipatory search warrants, or warrants “which only become[ ] effective upon the happening of a future event, [are] not unconstitutional per se.” Id. at 1085; see also United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir.1993) (reviewing general approval of anticipatory warrants by federal circuits). The court further recognized that anticipatory warrants are not “ ‘somehow suspect or legally disfavored,’ ” but have instead “repeatedly been upheld, assuming probable cause and so long as the conditions precedent to execution are clearly set forth in the warrant or in the affidavit in support of the anticipatory warrant.” Hugoboom, 112 F.3d at 1085 (quoting United States v. Gendron, 18 F.3d 955, 965 (1st Cir.1994)). In determining that anticipatory warrants are not per se unconstitutional, the court noted that the United States Constitution only requires that “ ‘a search ... not be “unreasonable,” and that warrants ... be supported by “probable cause.” ’ ” Id. (quoting Gendron, 18 F.3d at 965 (quoting U.S. Const, amend. IV)). The court recognized that “[t]here is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that [the contraband] will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant’s search authority to the future event that brings with it the probable cause.... In principle, the use of a ‘triggering event’ can help assure that the search takes place only when justified by ‘probable cause.’ ” Id. (quoting Gendron, 18 F.3d at 965) (citation omitted). As the court indicated in Hugoboom, the two general requirements for a valid anticipatory warrant are (1) that it be supported by probable cause and (2) that the warrant or supporting affidavit clearly set out conditions precedent to the warrant’s execution. See id. A. Probable Cause Anticipatory warrants differ from traditional search warrants in that at the time of issuance they are not supported" }, { "docid": "23555986", "title": "", "text": "However, we recognize that every circuit court of appeals to have addressed this question has held that anticipatory search warrants are not categorically unconstitutional. See, e.g., United States v. Hugoboom, 112 F.3d 1081, 1085-86 (10th Cir.1997); United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir.1993); United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993); United States v. Wylie, 919 F.2d 969, 974 (5th Cir.1990); United States v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988); United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.) cert. denied, 439 U.S. 869, 99 S.Ct. 198, 58 L.Ed.2d 180 (1978); United States ex rel. Beal v. Skaff, 418 F.2d 430, 432-33 (7th Cir.1969). Such warrants have repeatedly been upheld where they are supported by probable cause and the conditions precedent to the search are clearly set forth in the warrant or supporting affidavit. Hugoboom, 112 F.3d at 1085 (citing cases). We agree with the other circuits that “the simple fact that a warrant is ‘anticipatory’ ... does not invalidate a warrant or make it somehow suspect or legally disfavored.” United States v. Gendron, 18 F.3d 955, 965 (1st Cir.), cert. denied, 513 U.S. 1051, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994); Hugoboom, 112 F.3d at 1085 (quoting Gendron, 18 F.3d. at 965). We hold, therefore, that anticipatory warrants which meet the probable cause requirement and specifically identify the triggering event are not per se unconstitutional. B. Probable Cause Anticipatory warrants differ from traditional warrants in that they are not supported by probable cause to believe the items to be seized are at the place to be searched when the warrant is issued. United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir.1998). In fact, when issuing an anticipatory warrant, the court knows that the contraband has not yet reached the place to be searched. Id. That does not mean, however, that anticipatory war rants do not have to be supported" }, { "docid": "16306147", "title": "", "text": "1535, 75 L.Ed.2d 502 (1983) (plurality opinion)). For purposes of this appeal, the government has conceded that probable cause did not exist to search the Perry Street residence until the package was actually delivered. Gov’t Br. 8. Thus, we need not consider whether the mere fact that a valuable package of contraband is addressed to a particular place for delivery constitutes probable cause for a search. On the other hand, for purposes of this appeal, Mr. Hernandez-Rodriguez does not question whether probable cause existed once the delivery had been made and the package had been taken into the home. The sole questions in this case have to do with the specificity with which the triggering event — delivery of the package — was described, and whether that description was required to appear on the face of the warrant or in papers physically attached to the warrant. II. Specificity Mr. Hernandez-Rodriguez argues that the search warrant for the Perry Street residence was invalid because neither the warrant nor the affidavit in support of the warrant set forth a sufficient description of the triggering event to allow the issuing judge to find probable cause. We disagree. As with all warrants, so with anticipatory warrants, the United States Constitution commands only that “ ‘a search ... not be “unreasonable,” and that warrants ... be supported by “probable cause.” ’ ” Hugoboom, 112 F.3d at 1085 (quoting United States v. Gendron, 18 F.3d 955, 965 (1st Cir.1994) (Breyer, C.J.) (quoting U.S. Const. amend TV)). [A]s a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of items to be searched at the place to be searched. Id. at 1086 (citing Wayne H. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.1987)). Accordingly, we have recognized that [tjhere is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that [the contraband] will reach the house, not now, but" }, { "docid": "23512420", "title": "", "text": "the crime. We therefore find the jury’s entrapment decision lawful. Ill Search and Seizure Government agents searched Gendron’s house, and seized the primary piece of evi- denee (the videotape), pursuant to a warrant. That warrant authorized (1) a search of the residence of Daniel A. Gendron, 105 Winthrop Street, Rehoboth, Massachusetts 02769; for (2) a “VHS videocassette labeled PTL (1)” and related items; (3) “after delivery by mail to and receipt by Daniel Gendron” of a specifically described parcel (containing the tape) until the expiration of the warrant (ten days after its issuance). Gendron concedes that the warrant meets the Constitution’s two basic requirements: its issuance was supported by “probable cause” to believe that evidence of criminal activity would exist in his house after the delivery of the tape; and it “particularly describ[es] the place to be searched, and the ... things to be seized.” U.S. Const, amend. IV. He claims that it is nonetheless invalid because it is an “anticipatory warrant” which fails adequately to specify the time at which it will take effect. Gen-dron cites in support a recent case decided by a different panel of this court, United States v. Ricciardelli, 998 F.2d 8 (1st Cir.1993). In general, the simple fact that a warrant is “anticipatory” — i.e., that it takes effect, not upon issuance, but at a specified future time — does not invalidate a warrant or make it somehow suspect or legally disfavored. Warrants often do specify that they will take effect upon issuance. But the Constitution imposes no such requirement. Rather, it says that a search must not be “unreasonable,” and that warrants must be supported by “probable cause.” U.S. Const, amend. IV. There is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant’s search authority to the future event that brings with it the probable cause (e.g., the time of “delivery of a large brown package addressed to X with return address Y”). Ricciardelli, 998 F.2d" }, { "docid": "23512421", "title": "", "text": "Gen-dron cites in support a recent case decided by a different panel of this court, United States v. Ricciardelli, 998 F.2d 8 (1st Cir.1993). In general, the simple fact that a warrant is “anticipatory” — i.e., that it takes effect, not upon issuance, but at a specified future time — does not invalidate a warrant or make it somehow suspect or legally disfavored. Warrants often do specify that they will take effect upon issuance. But the Constitution imposes no such requirement. Rather, it says that a search must not be “unreasonable,” and that warrants must be supported by “probable cause.” U.S. Const, amend. IV. There is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant’s search authority to the future event that brings with it the probable cause (e.g., the time of “delivery of a large brown package addressed to X with return address Y”). Ricciardelli, 998 F.2d at 10-11. In principle, the use of a “triggering event” can help assure that the search takes place only when justified by “probable cause”; and anticipatory warrants may thereby offer greater, not lesser, protection against unreasonable invasion of a citizen’s privacy. As one commentator has put it, as a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be searched at the place to be searched. 2 Wayne R. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed. 1987). Were “anticipatory warrants” unlawful, law enforcement agents would have to wait until the triggering event occurred; then, if time did not permit a warrant application, they would have to forego a legitimate search, or, more likely, simply conduct the search (justified by “exigent circumstances”) without any warrant at all. See Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969," }, { "docid": "16306149", "title": "", "text": "then. Nor does it seem automatically unreasonable to tie the warrant’s search authority to the future event that brings with it the probable cause.... In principle, the use of a ‘triggering event’ can help assure that the search takes place only when justified by ‘probable cause.’ Id. (quoting Gendron, 18 F.3d at 965 (citation omitted)). This Court has rejected any suggestion that an affidavit in support of an anticipatory warrant must be subjected to “closer scrutiny than an affidavit seeking the issuance of a warrant which would be effective immediately.” Hfugoboom, 112 F.3d at 1086. Nonetheless, our cases have stressed that “the warrant or affidavit should express conditions permitting the search to be conducted only after the anticipated events have taken place.” United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir.1998). The articulation of the triggering event serves two important purposes. First, it ensures that the warrant will not be executed prematurely, before there is probable cause. Second, and more importantly, it “maintains judicial control over the probable cause determination and over the circumstances of the warrant’s execution.” Id. at 1202. If the triggering event were articulated in terms of an exercise of the officer’s unfettered discretionary judgment — for example, “when events occur that establish probable cause” — this would transfer control over probable cause determinations from the magistrate to the law enforcement officer, and thus undermine the purpose of the warrant requirement. Accordingly, an anticipatory warrant is valid only if “the conditions precedent to execution are clearly set forth in the warrant or in the affidavit in support.” Hugoboom, 112 F.3d at 1085; Rowland, 145 F.3d at 1201. As outlined in Agent Salazar’s affidavit, the triggering event in this case was as follows: Detective Ketcher would dress as a UPS delivery person, deliver the package to the address, and upon delivery to the address agents would execute the warrant. See Aff. 2, App. 33. Mr. Hernandez-Rodriquez argues that this description of the triggering event was not precise enough. Specifically, he suggests that the term “delivery” would allow the execution of the warrant after leaving the package on" }, { "docid": "23512425", "title": "", "text": "207; id. § 4.6(a), at 236. But we know of no justification for a stricter standard in respect to specificity of time than in respect to the other two (constitutionally referenced) search parameters. Ricciardelli, while stating that the contraband must be on a “sure and irreversible course” to the place to be searched, 998 F.2d at 13, did not purport to set forth any special new rule requiring more specificity where time, rather than, sky, place, is at issue. To the contrary, Ricciardelli says that a warrant’s restrictions in respect to time and place should be “similar.” Id. at 12. Second, the law tells us that we are to read descriptions in warrants (and in their supporting documents), not “hypertechnieal[ly],” but in a “commonsense” fashion. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); see also, e.g., United States v. Bianco, 998 F.2d 1112, 1116-17 (2d Cir.1993); In re Grand Jury Subpoenas, 926 F.2d 847, 855 (9th Cir.1991); United States v. Antone, 753 F.2d 1301, 1307 (5th Cir.1985); United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979). Read in a commonsense fashion, the warrant’s words seem specific and clear. Gendron takes the word “receipt,” however, from the phrase “delivery by mail to and receipt by Daniel Gendron,” and argues that it is fatally ambiguous because it might mean “receipt” anywhere, say, downtown or at the Post Office. But, as we have pointed out, see supra p. 958, context helps to provide a word’s meaning. The context includes, at least, the rest of the warrant, which describes Gendron’s house, makes clear that the.object of the search is a video that will arrive at that house by mail, and mentions “delivery by mail” to that house. Commonsense suggests that the words “receipt by Daniel Gendron” also refer to receipt at that house, and not to receipt downtown or at the Post Office, or (to use our own farfetched example) in Okinawa. We recognize that it is logically possible to read the word “receipt” as if it referred to receipt somewhere other than at Gendron’s" }, { "docid": "23512427", "title": "", "text": "house. But that logical’fact does not make the word any less specific. The logical fact that the world undoubtedly contains people named “Daniel Gendron” other than the defendant here does not mean that the warrant’s triggering event, “delivery by mail to and receipt by Daniel Gendron,” is ambiguous because it does not specify that the “Daniel Gendron” to whom it refers is the one residing at the address to be searched. Despite the logical possibility that the post office might accidentally deliver the tape to some other Daniel Gendron, thus apparently fulfilling the literal terms of the warrant, the warrant is adequately specific as to the person to receive the tape. Specificity does not lie in writing words that deny all unintended logical possibilities. Rather, it lies in a combination of language and context, which together permit the communication of clear, simple direction. Any effort to negate all unintended logical possibilities through the written word alone would produce linguistic complication and confusion to the point where a warrant, in practice, would fail to give the clear direction that is its very point. That is why we must avoid reading a warrant’s language “hypertechnically.” See Ventresca, 380 U.S. at 109, 85 S.Ct. at 746. Were it not for Ricciardelli, we would end the discussion here. We must concede, however, that Ricciardelli found unlawfully ambiguous a warrant with virtually identical language, namely, language that triggered the warrant upon delivery by mail to and receipt by Steven Ricciardelli of the ... package containing the videotape. 998 F.2d at 9. We find a significant difference, however, in the factual context in which the warrant was issued. The Ricciardelli panel referred to what it considered a critical fact: the (apparently significant) chance that the package would not be delivered to Ricciar-delli’s home at all — a possibility that [the postal inspectors] undeniably had envisioned. Id. at 17. The opinion also makes clear that the “delivery by mail” was by special delivery with a “return receipt,” and that the postal inspectors had “contingency plans” in the event that Ricciardelli received the package somewhere other than his" }, { "docid": "21583322", "title": "", "text": "believe that the materials were at the house did not exist at the time the warrant issued. We believe the warrant was properly issued. Many courts have affirmed the validity of anticipatory warrants. See e.g., United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.), cert. denied 439 U.S. 869, 99 S.Ct. 198, 58 L.Ed.2d 180 (1978); United States v. Outland, 476 F.2d 581, 583 (6th Cir.1973); United States ex rel. Beal v. Skaff, 418 F.2d 430, 432-34 (7th Cir.1969); United States v. Feldman, 366 F.Supp. 356, 362 (D.Ha.1973); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (1972); Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682 (1970). But see United States v. Flippen, 674 F.Supp. 536, 538-41 (E.D.Va.1987) (finding anticipatory warrant improper because of lack of “exigent circumstances”) (dictum), appeal docketed, No. 88-5041 (4th Cir. Mar. 14, 1988). We agree with the analysis of the Ninth Circuit in United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.1986), which upheld an anticipatory search warrant for child pornography. That court explained that where the contraband to be seized “is on a sure course to its destination, as in the mail, prior issuance of a warrant is permissible.” Hale, at 1468. In this case that standard is met. Inspector Northrop’s affidavit described in detail correspondence with Goodwin evidencing his predisposition, the verification of his residence, and his requests for specific materials. In paragraphs 19 through 21 of the affidavit, Northrop explained that he would cause the materials to be delivered via the mails. Because it is undisputed that these events occurred, we think the affidavit sufficed to establish probable cause. United States v. Goff, 681 F.2d at 1240. Goodwin next argues that by establishing Project Looking Glass, the government was “overreaching” and his conviction should be reversed due to this outrageous conduct. Believing as we do, that the government’s conduct was not unreasonable and a fortiori not outrageous, we find this second argument without merit. Any analysis of a due process argument based on the government’s" }, { "docid": "16306148", "title": "", "text": "forth a sufficient description of the triggering event to allow the issuing judge to find probable cause. We disagree. As with all warrants, so with anticipatory warrants, the United States Constitution commands only that “ ‘a search ... not be “unreasonable,” and that warrants ... be supported by “probable cause.” ’ ” Hugoboom, 112 F.3d at 1085 (quoting United States v. Gendron, 18 F.3d 955, 965 (1st Cir.1994) (Breyer, C.J.) (quoting U.S. Const. amend TV)). [A]s a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of items to be searched at the place to be searched. Id. at 1086 (citing Wayne H. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.1987)). Accordingly, we have recognized that [tjhere is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that [the contraband] will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant’s search authority to the future event that brings with it the probable cause.... In principle, the use of a ‘triggering event’ can help assure that the search takes place only when justified by ‘probable cause.’ Id. (quoting Gendron, 18 F.3d at 965 (citation omitted)). This Court has rejected any suggestion that an affidavit in support of an anticipatory warrant must be subjected to “closer scrutiny than an affidavit seeking the issuance of a warrant which would be effective immediately.” Hfugoboom, 112 F.3d at 1086. Nonetheless, our cases have stressed that “the warrant or affidavit should express conditions permitting the search to be conducted only after the anticipated events have taken place.” United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir.1998). The articulation of the triggering event serves two important purposes. First, it ensures that the warrant will not be executed prematurely, before there is probable cause. Second, and more importantly, it “maintains judicial control over the probable cause determination and over the circumstances" }, { "docid": "23231874", "title": "", "text": "to Moore, the district court erred in finding that the triggering event of the anticipatory search warrant occurred because no one inside the house took delivery of the package. Since Miggins, McDaniels and Watson were outside the house when the Federal Express van delivered the package and immediately left the premises with the package after Miggins signed for it and accepted delivery, Moore argues that the search of his residence pursuant to the search warrant was unauthorized because the warrant failed to satisfy the triggering event language. This Circuit, like other circuits, has approved of anticipatory search warrants. United States v. Jackson, 55 F.3d 1219, 1223 (6th Cir.1995); United States v. Lawson, 999 F.2d 985, 987-88 (6th Cir.1993); United States v. Rey, 923 F.2d 1217, 1220-21 (6th Cir.1991). An anticipatory search warrant is a search warrant that “by its terms [takes] effect not upon issuance but at a specified future time.” Jackson, 55 F.3d at 1223. Although courts have required that conditions triggering the anticipatory search warrant be “explicit, clear, and narrowly drawn,” United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir.1993) (quoting United States v. Garcia, 882 F.2d 699, 703-04 (2d Cir.1989)), warrants and their supporting documents are to be read “not ‘hypertechnieal[ly],’ but in a ‘commonsense’ fashion.” United States v. Gendron, 18 F.3d 955, 966 (1st Cir.1994) (quoting from United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). In this case, the affidavit attached in support of the warrant specified the triggering event. Although the search warrant did not contain the triggering event, the search warrant constituted a valid anticipatory search warrant, as it incorporated the affidavit. See United States v. Vigneau, 187 F.3d 70, 79 (1st Cir.1999) (citing United States v. Dennis, 115 F.3d 524, 529 (7th Cir.1997)); see also United States v. Hugoboom, 112 F.3d 1081, 1087 (10th Cir.1997); United States v. Moetamedi, 46 F.3d 225, 228-29 (2d Cir.1995); United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993). In this case, the package containing the cocaine was delivered by a police officer posing as a Federal Express driver," }, { "docid": "23512423", "title": "", "text": "1971-1972, 26 L.Ed.2d 409 (1970); 2 LaFave, supra, § 6.5. We are not surprised that courts have found “anticipatory warrants,” considered as a class, perfectly consistent with the Constitution. E.g., Ricciardelli 998 F.2d at 10-11; United States v. Garcia, 882 F.2d 699, 703 (2d Cir.1989); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988); United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.1986); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 659, 282 N.E.2d 614, 617 (1972). Gendron argues, however, that the warrant’s reference to “delivery by mail to and receipt by Daniel Gendron” does not describe with sufficient clarity its “triggering event,” i.e., the particular time when it will take effect. We agree with Gendron that a warrant must clearly say when it takes effect. We also agree that a warrant that says it takes effect upon the occurrence of a future event runs a greater risk of ambiguity than a warrant that refers only to a specific day, month, and year (as do ordinary search warrants). That is why comets have required that the conditions upon which anticipatory warrants become effective be “explicit, clear, and narrowly drawn.” Ricciardelli 998 F.2d at 12 (quoting Garcia, 882 F.2d at 703-04). That said, however, we do not find any fatal flaw in the warrant’s description. First, the law’s requirement with respect to specificity of time must be one of reasonable specificity. Glen, 331 N.Y.S.2d at 661, 282 N.E.2d at 619 (warrant should require search to be “reasonably contemporaneous” with arrival of contraband); 2 LaFave, supra, § 3.7(c), at 99 & n. 103 (citing Glen). One can understand how a specificity requirement in respect to time, like those in respect to “place to be searched” or “things to be seized,” U.S. Const, amend. TV, might limit the discretion of law enforcement officers to decide when and where and what to search, thereby avoiding the “hated general writs of assistance of pre-Revolutionary times,” Glen, 331 N.Y.S.2d at 659, 282 N.E.2d at 617, and assuring the existence of “probable cause.” 2 LaFave, supra, § 3.7(c), at 99; id. § 4.5, at" }, { "docid": "23606661", "title": "", "text": "the executing agents are called upon to determine when and whether the triggering event specified in the warrant has actually occurred. Consequently, magistrates who are asked to issue such warrants must be particularly vigilant in ensuring that the opportunities for exercising unfettered discretion are eliminated. To satisfy these concerns, the magistrate must set conditions governing an’ anticipatory warrant that are “explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.” Garcia, 882 F.2d at 703-04; accord Tagbering, 985 F.2d at 950. There are two particular dimensions in which anticipatory warrants must limit the discretion of government agents. First, the magistrate must ensure that the triggering event is both ascertainable and preordained. The warrant should restrict the officers’ discretion in detecting the occurrence of the event to almost ministerial proportions, similar to a search party’s discretion in locating the place to be searched. Only then, in the prototypical case, are the ends of explicitness and clarity served. Second, the contraband must be on a sure and irreversible course to its destination, and a future search of the destination must be made expressly contingent upon the contraband’s arrival there. Under such circumstances, a number of courts have found anticipatory search warrants to be valid. See, e.g., Nixon, 918 F.2d at 903 n. 6; United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989); Goodwin, 854 F.2d at 36; United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986); Goff, 681 F.2d at 1240. We adopt the “sure and irreversible course” standard as a means of judging the validity of anticipatory warrants. It is at this juncture, however, that we part company with the government. The sure course standard functions as a proxy for the actual presence of the contraband at the locus to be searched. It offers the magistrate a trustworthy assurance that the contraband, though not yet on the site, will almost certainly be located there at the time of the search," }, { "docid": "23512426", "title": "", "text": "United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979). Read in a commonsense fashion, the warrant’s words seem specific and clear. Gendron takes the word “receipt,” however, from the phrase “delivery by mail to and receipt by Daniel Gendron,” and argues that it is fatally ambiguous because it might mean “receipt” anywhere, say, downtown or at the Post Office. But, as we have pointed out, see supra p. 958, context helps to provide a word’s meaning. The context includes, at least, the rest of the warrant, which describes Gendron’s house, makes clear that the.object of the search is a video that will arrive at that house by mail, and mentions “delivery by mail” to that house. Commonsense suggests that the words “receipt by Daniel Gendron” also refer to receipt at that house, and not to receipt downtown or at the Post Office, or (to use our own farfetched example) in Okinawa. We recognize that it is logically possible to read the word “receipt” as if it referred to receipt somewhere other than at Gendron’s house. But that logical’fact does not make the word any less specific. The logical fact that the world undoubtedly contains people named “Daniel Gendron” other than the defendant here does not mean that the warrant’s triggering event, “delivery by mail to and receipt by Daniel Gendron,” is ambiguous because it does not specify that the “Daniel Gendron” to whom it refers is the one residing at the address to be searched. Despite the logical possibility that the post office might accidentally deliver the tape to some other Daniel Gendron, thus apparently fulfilling the literal terms of the warrant, the warrant is adequately specific as to the person to receive the tape. Specificity does not lie in writing words that deny all unintended logical possibilities. Rather, it lies in a combination of language and context, which together permit the communication of clear, simple direction. Any effort to negate all unintended logical possibilities through the written word alone would produce linguistic complication and confusion to the point where a warrant, in practice, would fail to give the" }, { "docid": "4656803", "title": "", "text": "proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be searched at the place to be searched. 2 Wayne R. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.1987). This circuit has long recognized the constitutionality of such warrants. See United States ex rel. Beal v. Skaff, 418 F.2d 430, 434 (7th Cir.1969) [hereinafter Beal]. Illinois courts have likewise noted that “the objective of the fourth amendment is better served by allowing the police to obtain a warrant in advance of delivery, rather than have the police go to the scene and proceed under the exigent circumstances exception to the warrant requirement.” People v. Ross, 267 Ill.App.3d 711, 205 Ill.Dec. 49, 54, 642 N.E.2d 914, 919 (1994) (citations omitted).. While acknowledging that anticipatory search warrants are not per se unconstitutional, Leidner contends that the warrant here was unconstitutional because (1) it lacked an explicit statement that delivery of the marijuana was a condition precedent to its execution, and (2) because the complaint (or warrant affidavit) failed to establish an independent connection or “nexus” between Leidner’s residence and the contraband found within, and (3) the complaint failed to demonstrate that the marijúana was on a “sure course” to Leidner’s residence. (Def.’s Br. at 9). The government resolutely seeks reversal of the district court’s suppression ruling, arguing that “ ‘[cjontraband does not have to be presently located at the place described in the warrant if there is probable cause to believe that it will be there when the search warrant is executed.’ ” (Gov.’s Br. at 7) (citing United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.1978)). The government also contends that the warrant’s lack of an explicit conditioning statement is not a constitutional defect and, in any event, is of no significant consequence since the judge verbally advised the officers at the hearing to wait until 'delivery before executing the search and since the officers," }, { "docid": "21446290", "title": "", "text": "manufacture federal jurisdiction. We have just decided that question adversely to his contention in United States v. Goodwin, 854 F.2d 33, 37, n. 3 (4th Cir.1988), and see no use in further discussion. Defendant next contends that there were several problems with the legality of the search and seizure. He argues that anticipatory search warrants are unconstitutional and if not unconstitutional then improperly allowed in the present case. We recently upheld an anticipatory search warrant for child pornography in United States v. Goodwin, supra, 854 F.2d at 36. We adopted the analysis of the Ninth Circuit in United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.1986), and held that an anticipatory warrant is permissible “where the contraband to be seized ‘is on a sure course to its destination, as in the mail ... ”’ Goodwin, 854 F.2d at 36, quoting United States v. Hale, 784 F.2d at 1468. In the present case, in the affidavit upon which the search warrant was issued, Inspector Northrop stated that he would place the contraband in the United States mail to be delivered to Dornhofer. The magistrate conditioned the validity of the search warrant on the contraband being so placed in the mail. When Northrop placed the contraband in the mail, the requirement of Goodwin that the contraband was on a sure course to its destination was met. We conclude the anticipatory search warrant in this case is valid. Dornhofer also contends that the search warrant was overly broad on its face. He argues that it lacked constitutionally required specificity. The challenged warrant permitted the seizure of “[v] ario us books, magazines, photographs, negatives, films and/or video cassettes depicting minors engaged in sexually explicit conduct as defined in 18 U.S.C. 2256.” 18 U.S.C. § 2256(2) defines sexually explicit conduct as: “actual or simulated—(A) sexual intercourse, including genital-genital, oral-genital, or oral anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person.” We agree with the Ninth Circuit that when a warrant describes" } ]

[ { "docid": "22539944", "title": "", "text": "are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation. The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible. When that “mainstreaming” preference of the Act has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been “educated” at least to the grade level they have completed, and access to an “education” for handicapped children is precisely what Congress sought to provide in the Act. C When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a “free appropriate public education,” we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. IV A As mentioned in Part I, the Act permits “[a]ny party aggrieved by the findings and decision” of the state administrative hearings “to bring a" } ]

[ { "docid": "4200746", "title": "", "text": "expressed IDEA’S purpose “to confer some educational benefit upon the handicapped child.” 458 U.S. at 200, 102 S.Ct. at 3048 (emphasis added)). The Court quoted the statute as affording “specially designed instruction” and services “to assist a handicapped child to benefit from special education. § 1401(17) (emphasis added).” Id. Rowley declined to fix any single test to determine the adequacy of benefits that must be conferred by IDEA; this court’s Michael F. test fills in some gaps. But Rowley held that for a particular child who had received “substantial” specialized instruction and services to compensate for deafness and “who is performing above average in the regular classrooms of a public school system,” the IEP was sufficient to afford her a FAPE. The Court held, “the IEP, and therefore the personalized instruction, should ... if the child is being educated in the regular classrooms ... be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U.S. at 204, 102 S.Ct. at 3049. Rowley not only enjoined lower courts to be “careful to avoid imposing their view of preferable educational methods ...” 458 U.S. at 207, 102 S.Ct. at 3051, but on the facts before it rejected a demand that the particular student be furnished additional auditory services to maximize her potential. 458 U.S. at 198, 102 S.Ct. at 3047. Nowhere in Rowley is the educational benefit defined exclusively or even primarily in terms of correcting the child’s disability. Certainly, given the wide range of disabilities covered by IDEA, remediation may often be part of an IEP. Behavioral modifications, for instance, immediately come to mind as an example of an IEP strategy that may remediate a disability while also being necessary to confer educational benefits. But the whole educational experience, and its adaptation to confer “benefits” on the child, is the ultimate statutory goal. From this holistic perspective, we have carefully reviewed Per’s IEPs, his high school educational record, his assessments and the administrative hearing record. Our application of each of the Michael F. factors thus necessarily differs from those of the district court" }, { "docid": "2395748", "title": "", "text": "690 F.3d at 399 (\"This is because grading and advancement in regular classrooms monitor a child’s progress, and the \"system itself” confirms the extent of the educational benefit to the child.”), citing Rowley, 458 U.S. at 203, 102 S.Ct. 3034. \"Nevertheless, the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis ; rather an IEP must be likely to produce progress, not regression or trivial educational advancement.” Michael F., 118 F.3d at 248. The IEP is a collaborative effort and provides procedural safeguards to insure that the parents and children with disabilities are involved in the creation and implementation of the individualized program. . The statute under the first prong -lists the following as qualifying disabilities: “intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness, serious emotional disturbance ..., orthopedic impairments, autism, traumatic brain injury, or other health impairments or specific learning disabilities.” See also 34 C.F.R. § 300.8, defining “Child with a disability.” . In Rowley, 458 U.S. at 188, 102 S.Ct. 3034, Justice Rehnquist, writing for the majority, pointed out the IDEA'S express definition of FAPE: “The term 'free appropriate education’ means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondaiy education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title. § 1401(18) (emphasis added). The opinion continues, \"Special education,” as referred to in this definition, means \"specially designed instruction,” at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” § 1401(16). \"Related services” are defined as “transportation, and such developmental, corrective and other supportive services as may be required to assist a handicapped child to benefit from special education.” § 1401(17). Id. Justice Rehnquist continued," }, { "docid": "22410847", "title": "", "text": "needs. Only \"when the nature or severity” of a child’s disability is such “that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” should a child be segregated. Id. In such cases, instruction may be provided not only in special classrooms but also “in the home, in hospitals and institutions, and in other settings.” 20 U.S.C. § 1401(a)(16). Indeed, a school board may be required to place a child in a residential institution if such a placement is necessary to provide an appropriate education. See 34 C.F.R. § 300.302 (1998); Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1122 (2d Cir.1997). The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written IEP. See 20 U.S.C. § 1414(a)(5). An IEP must state (1) the child’s present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. See 20 U.S.C. § 1401(a)(20). A school official qualified in special education, the child’s teacher, the child’s parents, and, where appropriate, the child, all participate in the development of an IEP. See id. Parents who are dissatisfied with a proposed IEP may file a complaint with the state educational agency. . See 20 U.S.C. § 1415(b)(1)(E). Complaints are resolved through an “impartial due process hearing,” 20 U.S.C. § 1415(b)(2), at which school authorities have the burden of supporting the proposed IEP, see Matter of the Application of a Handicapped Child, 22 Educ. Dep’t Rep. 487, 489 (1983) (“It is well established that a board of education has" }, { "docid": "14528682", "title": "", "text": "school satisfies that requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and ... should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Rowley, 458 U.S. at 203-04, 102 S.Ct. 3034. A FAPE need not .maximize the child’s potential; it must guarantee “a basic floor of opportunity”. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (quotation omitted). Under this prong of Rowley, the focus of our inquiry is on academic achievement; and, while the IDEA requires the school to provide services to allow the child the requisite basic floor of opportunity, it does not require the school to make special accommodations at the parent’s request (no matter how well intentioned), particularly where the request is not related to helping the child achieve academic potential. As noted, it is undis puted that Dylan was succeeding academically at the centralized school; thus, his IEP clearly met the requirements of FAPE. It is also undisputed that the parents’ request that Dylan attend his neighborhood school was primarily social — they wanted him to be able to attend school with other neighborhood children; this concern is beyond the scope of the “educational benefit” inquiry courts make under the IDEA. 2. Regarding whether the IDEA’S procedural requirements were followed, as stated, the Whites first assert that they were improperly denied input into the site selection. They also maintain the decision otherwise contravened the IDEA. a. As noted, the IDEA requires that the parents be part of the team that creates the IEP and determines the educational placement of the child, 20 U.S.C. § 1414(d)(1)(B); and the IEP is to include location, 20 U.S.C. § 1414(d)(l)(A)(vi) (IEP must" }, { "docid": "3984774", "title": "", "text": "to benefit from special education. The EAHCA defines “special education” as “specially designed instruction, at no cost to parents or guardians, to meet the unique' needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” 20 U.S.C. § 1401(16) (1976). The school district contends that before Amber is entitled to CIC, she must allege and prove that she could not benefit from special education provided to her by the school district at home or in another institution where CIC is already being provided. If she could benefit from special education in these alternative placements, the argument goes, provision of CIC by the school district would not be required to fulfill the requirements of the EAHCA. We cannot agree that the Tatros must make such a showing in this case. In its first case considering the EAHCA, the Supreme Court recently held that the statute provides a “basic floor of opportunity” consisting of personalized instruction and related services designed to enable handicapped children to benefit from educa tion. Board of Education v. Rowley,U.S. -, -, 102 S.Ct. 3034, 3048, 73 L.Ed.2d 690 (1982). Although the state is accorded wide discretion to choose educational means, id. 102 S.Ct. at 3051-52, and need not maximize each child’s potential, id. 102 S.Ct. at 3048, the required instruction and related services must meet certain standards. “Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP.” Id. 102 S.Ct. at 3049 (emphasis added). Similarly, the regulations under the EAHCA require that each handicapped child’s placement be based upon his or her IEP. 34 C.F.R. § 300.-552(a)(2) & (b) (1982). The EAHCA provides that each handicapped child’s IEP will be jointly developed by the school officials, the child’s teacher, his or her parents and, when appropriate, the child. 20 U.S.C. § 1401(19) (1976). The IEP is the educational blueprint that specifies how the child is to be taught, sets goals and determines how" }, { "docid": "14528681", "title": "", "text": "student is entitled in order to receive a FAPE. Once a child’s educational program is determined, the school must attempt to place the child in the “least restrictive environment” (LRE) (e.g., as best it can, it must educate the child among not disabled children). 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.500-300.556. When an action is brought under the IDEA, or the appropriateness of an IEP challenged, our inquiry is two-fold: (1) whether “the [IEP] developed through the Act’s procedures [is] reasonably calculated to enable the child to receive educational benefits”; and (2) whether the school district has “complied with the procedures set forth in the [IDEA]”. Board of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). “If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207, 102 S.Ct. 3034. 1. Of course, a primary purpose of the IDEA is to ensure that disabled children receive a FAPE. See 20 U.S.C. § 1412(a). A school satisfies that requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and ... should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Rowley, 458 U.S. at 203-04, 102 S.Ct. 3034. A FAPE need not .maximize the child’s potential; it must guarantee “a basic floor of opportunity”. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (quotation omitted). Under this prong of Rowley, the focus of our inquiry is on academic achievement; and, while the IDEA requires the school to provide services to allow the child the requisite basic floor of opportunity, it does not require the school" }, { "docid": "6894753", "title": "", "text": "these factors justified denying a fee award to the Schramms as the prevailing parties. The school district argues on appeal to this court that the district court erroneously determined that Tracy qualified as a disabled child under IDEA and that it abused its discretion in granting attorney fees to the Schramms. II. The Individuals with Disabilities Education Act of 1990, originally enacted in 1975 as the Education for All Handicapped Children Act (EHA), ensures that all children with disabilities have access to “a free appropriate public education.” 20 U.S.C. § 1400(e); Board of Educ., Etc. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049, 73 L.Ed.2d 690 (1982). At the time of EHA’s passage, an estimated 1.75 million handicapped children were not receiving any educational services and another 2.5 million were not receiving an appropriate education. Rowley, 458 U.S. at 191, 102 S.Ct. at 3043. EHA was intended to provide a “basic floor of opportunity” by opening the door of public education to disabled children, with the hope of integrating them in regular classrooms as much as possible. Id. at 192, 102 S.Ct. at 3043-44; Light v. Parkway C-2 School District, 41 F.3d 1223, 1227 (8th Cir. 1994); cert. denied, — U.S.-, 115 S.Ct. 2557, 132 L.Ed.2d 811 (1995). All children with disabilities, such as an orthopedic impairment, “who, by reason thereof, need special education and related services” fall within IDEA’S scope. Id. § 1401(a)(1)(A). “Special education” means “specially designed instruction ... to meet the unique needs of a child with a disability,” and includes instruction in the classroom, home, and in physical education. Id. § 1401(a)(16). “Related services” include physical therapy, “transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a child with a disability to benefit from special education_” Id.% 1401(a)(17). A “free appropriate public education” under IDEA requires special education and related services from preschool through secondary school, tailored to a disabled child’s unique needs by means of an “individualized education program” or IEP. 20 U.S.C. § 1401(a)(18). An IEP is a written statement developed by school officials, teachers," }, { "docid": "4200753", "title": "", "text": "to the student. 118 F.3d at 253. This court has stated, “clearly,” evidence of an academic benefit militates in favor of a finding that an IEP is appropriate. Adam J. ex rel. Robert J. v. Keller Indep. Sch., Dist., 328 F.3d 804, 810 (5th Cir.2003). See also Juan P., 582 F.3d 576, 588 (5th Cir.2009) (“educational benefit” one of the most critical factors in assessing an IEP). Viewed from the holistic Rowley perspective, rather than the district court’s narrow perspective of disability remediation, Per obtained a high school level education that would have been sufficient for graduation. . (Indeed, Per is in college now.) As Rowley notes, when a learning disabled student “is being educated in the regular classrooms of the public education system, [an IEP] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U.S. at 204, 102 S.Ct. at 3049. This is because grading and advancement in regular classrooms monitor a child’s progress, and the “system itself’ confirms the extent of educational benefit to the child. 458 U.S. at 203, 102 S.Ct. at 3049. This is not a case where Per regressed educationally or could not measure up to ordinary grade-level standards. Compare Juan P., supra, 582 F.3d at 588-90 (IEP insufficient because student would not have advanced without lowered standards), with Bobby R., supra, 200 F.3d at 350 (advancement is not required in every area to obtain an educational benefit from an IEP). In sum, each of the Michael F. factors, analyzed under the correct legal standard, supports the conclusion that Per’s IEPs were adequate to confer a FAPE. It is regrettable that the sources of Per’s disability of written expression, having been early exposed, were not attacked earlier in his educational career. The school district, however, did not fail to comply with IDEA when the means it used facilitated Per’s substantial achievements in secondary school. Rowley requires no more. Conclusion For these reasons, the judgment of the district court is REVERSED and RENDERED. . During fall 2005, the ADD diagnosis was removed from Per’s profile. ." }, { "docid": "23568486", "title": "", "text": "of a student’s later educational progress may [ ] be considered in determining whether the original IEP was reasonably calculated to afford some educational benefit.” Fuhrmann, 993 F.2d at 1040. Moreover, the Supreme Court has indicated that a special education student who “is being educated in the regular classrooms of a public school system” and who is performing well enough to advance from grade to grade generally will be considered to be receiving a meaningful educational benefit under the IDEA. Roivley, 458 U.S. at 203, 102 S.Ct. at 3049. Nevertheless, though the Court has stated that the “grading and advancement system” constitutes “an important factor in determining educational benefit,” it also has made clear that it was not holding “that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a ‘free appropriate public education.’ ” Id. at 203 & n. 25, 102 S.Ct. at 3049 & n. 25. D.S., however, was not being educated in Bayonne’s regular classrooms. To the contrary, Bayonne was giving him all of his academic instruction in classes composed entirely of special education students in its “cluster” program. The District Court apparently did not view this distinction as significant because “[i]n Bayonne, state core curriculum standards underlie the core curriculum content for all of its students, including special education students.” App. at 11. Rowley, however, does not support the District Court’s position that high scores achieved in special education classrooms are unambiguous evidence of an IEP’s sufficiency. In this regard it is important to reiterate that in Rowley the Supreme Court made its statements regarding the limited significance of grade-to-grade advancement in the situation before it in which the “mainstreaming” preference of the IDEA had been met and the Court was “presented with a handicapped child ... who is performing above average in the regular classrooms of a public school system.” Rowley, 458 U.S. at 202-03, 102 S.Ct. at 3049 (emphasis added). Thus, our reading of Rowley leads us to believe that when the “mainstreaming” preference has not been met so that high grades are achieved" }, { "docid": "4200745", "title": "", "text": "FAPE. Rather, they assert that his IEPs were not suffi ciently individualized, the collaborative process was thwarted, and KISD afford no “academic benefit” tailored to his disability. The district court relied upon the second Rowley prong in determining that KISD failed to provide a FAPE to Per. Considering the four Michael F. factors, the court determined that only the second factor, that the program be administered in the least restrictive environment, partially supported KISD’s position that Per’s IEP was reasonably calculated to provide him with meaningful educational benefit. Unfortunately, the court’s reasoning is flawed by its legal error in interpreting the “educational benefit” afforded Per solely in terms of weaknesses caused by his learning disability rather than his overall academic record at Klein. Factual findings made under an erroneous view of controlling legal principles are reviewed de novo. Flint Hills Resources LP v. Jag Energy, Inc., 559 F.3d 373, 375 (5th Cir.2009) (quoting Houston Exploration Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir.2004). In Rowley, the Supreme Court clearly and repeatedly expressed IDEA’S purpose “to confer some educational benefit upon the handicapped child.” 458 U.S. at 200, 102 S.Ct. at 3048 (emphasis added)). The Court quoted the statute as affording “specially designed instruction” and services “to assist a handicapped child to benefit from special education. § 1401(17) (emphasis added).” Id. Rowley declined to fix any single test to determine the adequacy of benefits that must be conferred by IDEA; this court’s Michael F. test fills in some gaps. But Rowley held that for a particular child who had received “substantial” specialized instruction and services to compensate for deafness and “who is performing above average in the regular classrooms of a public school system,” the IEP was sufficient to afford her a FAPE. The Court held, “the IEP, and therefore the personalized instruction, should ... if the child is being educated in the regular classrooms ... be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U.S. at 204, 102 S.Ct. at 3049. Rowley not only enjoined lower courts" }, { "docid": "13713552", "title": "", "text": "educational services for handicapped children. “[T]his legislation * * * will prove to be the long awaited step towards a national program to ensure quality education to all handicapped Americans * * * ”. 121 Cong.Rec.H. 37029 (daily ed. Nov. 18, 1975) (statement of Rep. Conte). The procedural protections, in particular, were seen as an important and comprehensive means of achieving the goals of the statute. Representative Perkins, chairman of the House Committee on Labor and Education, spoke of the procedural safeguards as “designed to further the congressional goal of ensuring a full educational opportunity for all handicapped children.” Id. at H. 37025. Apparently Congress intended the court to have a significant role in achieving the substantive goals of the statute for it provided that the court may take additional evidence and base its decision “on the preponderance of the evidence”. However, in Hendrick Hudson, the Supreme Court rejected a standard of de novo review, saying “the provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” 102 S.Ct. at 3051. In its attempt to guarantee a “free appropriate public education” to all handicapped children, the EHA establishes substantive rights and procedural safeguards. The substantive right to a free appropriate public education has been interpreted by the Supreme Court to mean personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade level used in the State’s regular education, and must com port with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Id. 102 S.Ct." }, { "docid": "21481596", "title": "", "text": "Background At all times relevant to this action, Plaintiff’s child, E.A., was a student in the District of Columbia’s public school system. On May 21, 2013, the District of Columbia Public Schools (“DCPS”) convened a meeting to develop an Individualized Education Program (“IEP”) for E.A. See Hearing Officer Determination, ECF No. 9-5 at 7 [hereinafter HOD]. An IEP, as required by the Individuals with Disabilities Education Act . (“IDEA”), 20 U.S.C. § 1400 et seq., is “a written statement for each child with a disability” that includes “the child’s present levels of academic achievement and functional performance” and sets forth the “services” and “accommodations” to be provided to the child, id. § 1404(14). In advance of E.A.’s IEP meeting, he was evaluated both by “independent professionals” who worked with him at his daycare facility and by “DCPS’s eligibility team members” whose only contact with E.A. was for diagnostic purposes. See HOD at 4; see also id. 5-7. The resulting IEP (the “Initial IEP”) required DCPS to provide E.A. with five hours per week of “Specialized Instruction” in a general education setting and two hours per month of both “Occupational Therapy” and “Speech-Language Pathology” outside of a general education setting. Initial IEP, ECF No. 19-1 at 8. The Initial IEP concluded that E.A. had a “developmental delay” but “rejected the disability classification of autism spectrum disorder” advanced by Plaintiff, HOD at 7, and ■ expressly declined to provide E.A. with a “dedicated .aide,” Initial IEP at 8. Thereafter, E.A. was assigned to a general education classroom at a DCPS school. See HOD at 7. Dissatisfied with the Initial IEP, Plaintiff hired counsel and on September 12, 2013, filed an administrative due process complaint against DCPS alleging that the Initial IEP denied E.A. the “free appropriate public education” (“FAPE”) to which he is entitled under the IDEA. 20 U.S.C. § 1400(d)(1)(A); see also Pl,’s Mem. of P. & A. in Supp. of PL’s Mot. for Summ. J., ECF No. 9-4 -at 2 [hereinafter Pi’s Mot.]. Specifically, the complaint alleged that the Initial IEP (1) failed to “offer appropriate related services in the" }, { "docid": "23657958", "title": "", "text": "will be “of benefit” to him. The governing law, however, clearly imposes a higher standard. New Jersey qualifies for assistance from the federal government under the Education of the Handicapped Act, 84 Stat. 175, as amended, 20 U.S.C. § 1041 et seq. (1982). It is thus required to provide a “free appropriate education” to every disabled child. 20 U.S.C. § 1412(2)(B). In Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) the Supreme Court considered the Act’s requirement of a free appropriate education. The free appropriate education must, said the Court, be “tailored to the unique needs of the handicapped child by means of an ‘individualized education program’ (IEP).” Id. at 181, 102 S.Ct. at 3038. According to the Court “ ‘the basic floor of opportunity’ provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Id. at 201, 102 S.Ct. at 3048. “Insofar as a State is required to provide a handicapped child with a ‘free appropriate public education’,” the Court continued, “we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Id. at 203, 102 S.Ct. at 3049. A personalized plan of instruction is required because the Act requires the state to educate a wide spectrum of disabled children. Id. at 189, 202, 102 S.Ct. at 3042, 3048. For disabled children able to attend regular classrooms in the public education system, as was the child in Rowley, the individualized plan “should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id. at 204, 102 S.Ct. at 3049. Andrew Diamond has never been able to attend classes in regular classrooms. Thus the Rowley standard of enabling one to achieve passing marks and advance from grade to grade probably is not achievable for Andrew. But Rowley makes it perfectly clear that the Act requires a plan of instruction under which educational progress is" }, { "docid": "8057907", "title": "", "text": "guaranteeing students with disabilities access to a “free appropriate public education” (“FAPE”), 20 U.S.C. § 1400(d)(1)(A), is the IEP, id. § 1414(d). An IEP is a “written statement” setting forth 1) “the child’s present levels of academic achievement and functional performance”; 2) “measurable annual goals,” both “academic and functional”; 3) “how the child’s progress ... will be measured”; 4) “the special education and related services and supplementary aids and services” to be provided the child; 5) “an explanation of the extent, if any, to which the child will not participate” in regular school classes and activities; 6) how the child will participate in required testing; 7) a “projected date for the beginning of’ the child’s support services and details about their “frequency, location, and duration”; and 8) a statement regarding the child’s goals for and transition to life post-secondary education. Id. § 1414(d)(l)(A)(i)(I)-(VIII). The IEP is created and periodically reviewed and revised by “a team consisting of the child’s parents, the child’s regular classroom teacher, a special-education teacher, a representative of the local educational agency, and other individuals with knowledge of the child.” G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 751 F.Supp.2d 552, 572 (S.D.N.Y.2010) (citing 20 U.S.C. § 1414(d)(1)(B)). This team is referred to here as the “CSE” (Committee on Special Education). (6/20/06 IEP at 4.) Throughout his school career, Nicholas’s IEPs have generally recommended a combination of home and classroom instruction, emphasizing that the division between the two “must remain flexible as [Nicholas’s] medical condition and environmental concerns will impact school attendance.” (E.g., 3/27/06 IEP at 1.) From Nicholas’s fifth grade year on, his IEPs have required “[u]p to twenty hours of academic instruction,” and recommended that Nicholas “attend [the relevant] grade for approximately 2.5 hours a day, 3 days a week, as appropriate.” (Id.; see also 3/18/03 IEP at 4; 6/20/06 IEP at 1; 1/22/07 IEP at 2; 3/22/07 IEP at 2; 9/18/07 IEP at 2; 5/14/08 IEP at 2; 11/19/08 IEP at 2.) In June 2009, however, Nicholas’s IEP for the upcoming 2009-2010 school year was altered to provide for a program of" }, { "docid": "13249417", "title": "", "text": "children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009) (second and third alterations in original) (footnote omitted) (citation omitted) (internal quotation marks omitted). The cornerstone of the Act is the condition that schools provide children with a “free appropriate public education.” See 20 U.S.C. §§ 1412(a)(1)(A), 1413(a)(1). A free appropriate public education must be tailored to each child’s needs pursuant to an “individualized education program” (“IEP”) designed by the child’s “IEP Team.” Id. §§ 1401(14), 1414(d). The Act defines “free appropriate public education” to mean “special education and related services.” Id. § 1401(9). However, in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court refused to interpret the phrase to require schools to “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children,’ ” id. at 189-90, 102 S.Ct. 3034 (citation omitted). Instead, the Court interpreted the Act to require schools to provide a “ ‘basic floor of opportunity.’ ” Id. at 200, 102 S.Ct. 3034 (quoting H.R. Rep. No. 94-332, at 14 (1975)). A school satisfies the requirement of a free appropriate public education “by providing personalized instruction with sufficient support services to permit [a] child to benefit educationally from that instruction.” Id. at 203, 102 S.Ct. 3034. The “special education” component of “free appropriate public education” is not directly at issue in this case. The “related services” component, however, is of critical importance. For each child with a disability, the IEP Team is responsible for determining which related services must be made available by the school district. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV). All such services must be specified in a child’s written IEP. Id. “Related services” under the IDEA include, inter alia, “transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child" }, { "docid": "6894758", "title": "", "text": "District, 41 F.3d at 1229. A. The heart of the dispute in this case concerns whether Tracy still has a disability within the meaning of IDEA which entitles her to a free appropriate public education. 20 U.S.C. § 1400(c). If Tracy’s disability falls within the scope of IDEA, then the school district, in conjunction with her parents and Tracy, must create an IEP that provides for the special education and related services she needs as a result of her disability. Id. § 1401(a)(18); Rowley, 458 U.S. at 206 n. 27, 102 S.Ct. at 3051 n. 27. Because Yankton School District dismissed Tracy from its special education program when she finished ninth grade, it did not create a new IEP for her tenth grade year. This appeal therefore does not focus on a disputed portion of an IEP, but whether an IEP comporting with statutory requirements needs to be furnished. Since she became 16 in April 1994, Tracy’s IEP would have to include a statement of any needed transition services, the anticipated dates for their initiation and duration, and, if appropriate, the interagency responsibilities for them. Id. § 1401(a)(20). The types of transition services that Tracy requested, such as driver’s education, self-advocacy, and independent living skills, are not beyond the statutory scope. Id. § 1401(a)(19). Tracy is a disabled child under IDEA because the orthopedic impairment caused by her cerebral palsy still requires “special education and related services.” Id. § 1401(a)(1)(A). Special education is “specially designed instruction ... to meet the unique needs of a child with a disability,” and includes instruction in the classroom, home, and in physical education. Id. § 1401(a)(16). Tracy’s unique needs include slowness and fatigue when writing and stiffness and lack of dexterity in her right hand. To meet her needs, Tracy’s teachers shortened or modified the length and nature of her writing assignments, provided her with copies of their notes, and taught her how to type using only her left hand and the first finger of her right hand. None of this individualized instruction would have been necessary but for her orthopedic impairment. The district" }, { "docid": "22410846", "title": "", "text": "handicapped children.” Board of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (interpreting the Education for All Handicapped Children Act, subsequently amended and renamed IDEA). Toward that end, Congress provides federal funds to those states that develop plans to assure “all children with disabilities the right to a free appropriate public education.” 20 U.S.C. § 1412(1); see Board ofEduc. v. Rowley, 458 U.S. at 181, 102 S.Ct. at 3037-38. The “free appropriate public education” mandated by federal law must include “special education and related services” tailored to meet the unique needs of a particular child, 20 U.S.C. § 1401(a)(18), and be “reasonably calculated to enable the child to receive educational benefits,” Board of Educ. v. Rowley, 458 U.S. at 207, 102 S.Ct. at 3051. Because the law expresses a strong preference for children with disabilities to be educated, “to the maximum extent appropriate,” together with their non-disabled peers, 20 U.S.C. § 1412(5), special education and related services must be provided in the least restrictive setting consistent with a child’s needs. Only \"when the nature or severity” of a child’s disability is such “that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” should a child be segregated. Id. In such cases, instruction may be provided not only in special classrooms but also “in the home, in hospitals and institutions, and in other settings.” 20 U.S.C. § 1401(a)(16). Indeed, a school board may be required to place a child in a residential institution if such a placement is necessary to provide an appropriate education. See 34 C.F.R. § 300.302 (1998); Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1122 (2d Cir.1997). The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written IEP. See 20 U.S.C. § 1414(a)(5). An IEP must state (1) the child’s present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the" }, { "docid": "2183997", "title": "", "text": "for summary judgment. Cross-Motions for Summary Judgment A. The Individuals with Disabilities Education Act The IDEA was passed to provide educational opportunity for handicapped children when Congressional fact finding determined that many children with disabilities were either being excluded from the classroom or misplaced so that their education had no meaning. Rowley, 458 U.S. at 191, 102 S.Ct. at 3043 (citing H.R. Rep., at 2). The Act’s stated purpose is to: assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the right of children with disabilities and their parents or guardians are protected, ... and to assess and assure the effectiveness of efforts to educate children with disabilities. 20 U.S.C. § 1400(c); see Rowley, 458 U.S. at 179-84, 102 S.Ct. at 3037-39. The Act gives disabled students a substantive right to public education and conditions federal assistance upon a State’s compliance with the substantive and procedural goals of the Act. Honig v. Doe, 484 U.S. at 310, 108 S.Ct. at 597; Robert D. v. Sobel, 688 F.Supp. 861, 862 (S.D.N.Y.1988). The “free appropriate public education” required by the IDEA must be tailored to each child’s unique needs and take place in the least restrictive environment suitable for the child. 20 U.S.C. §§ 1400(c), 1412(5)(B). Free appropriate education requires “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203, 102 S.Ct. at 3049. To develop the proper program for each eligible child, the IDEA mandates an individualized education program, or IEP, for each eligible child. The IEP, prepared at meetings between the school district, the child’s teacher, and the child’s parents or guardians, defines the child’s present educational performance, establishes annual and short-terms objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. 20 U.S.C. § 1401(19); see Heldman v. Sobol, 962 F.2d 148, 151 (2d Cir.1992). The IDEA requires that the IEP be" }, { "docid": "23657959", "title": "", "text": "a handicapped child with a ‘free appropriate public education’,” the Court continued, “we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Id. at 203, 102 S.Ct. at 3049. A personalized plan of instruction is required because the Act requires the state to educate a wide spectrum of disabled children. Id. at 189, 202, 102 S.Ct. at 3042, 3048. For disabled children able to attend regular classrooms in the public education system, as was the child in Rowley, the individualized plan “should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id. at 204, 102 S.Ct. at 3049. Andrew Diamond has never been able to attend classes in regular classrooms. Thus the Rowley standard of enabling one to achieve passing marks and advance from grade to grade probably is not achievable for Andrew. But Rowley makes it perfectly clear that the Act requires a plan of instruction under which educational progress is likely. The School District’s “of benefit” test is offered in defense of an educational plan under which educational regression actually occurred. Literally the School Board’s plan might be conceived as conferring some benefit to Andrew in that less regression might occur under it than if Andrew Diamond had simply been left to vegetate. The Act, however, requires a plan likely to produce progress, not regression or trivial educational advancement. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985). Applying the Rowley standard for a free appropriate education the district court held: Plaintiff’s plan to place Andrew at Hamilton Square will not provide him “free appropriate public education.” (Emphasis added.) As amply demonstrated in this Court’s factual findings and conclusions, plaintiff’s plan will not “meet the unique needs of [this] handicapped child” and thus will not afford him “special education” as EHA requires. 20 U.S.C. §§ 1401(16), (18). Ad ditionally, plaintiff's plan will not provide the “related services ... required to assist [this] handicapped child.....” 20 U.S.C. § 1401(17). The inadequacies of" }, { "docid": "13713553", "title": "", "text": "an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” 102 S.Ct. at 3051. In its attempt to guarantee a “free appropriate public education” to all handicapped children, the EHA establishes substantive rights and procedural safeguards. The substantive right to a free appropriate public education has been interpreted by the Supreme Court to mean personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade level used in the State’s regular education, and must com port with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Id. 102 S.Ct. at 3049 (footnote omitted). It would have been extraordinarily difficult, if not impossible, for Congress to have been more precise in defining the special educational needs of particular handicapped children. Instead, Congress sought through its procedural safeguards to open the channels of communication between the parents of each child and the school administrators with a view toward developing the most appropriate program for each particular child. We thus are presented with an unusually detailed description of the administrative procedures required of a school district, and compliance with those procedural safeguards is an essential step in achieving the statutory goal of a free appropriate public education. We have no difficulty with the question of whether the judicial review contemplated by § 1415(e)(2) is the exclusive means for reviewing a final administrative decision under the EHA. We think it is. Congress provided in § 1415 an elaborate, precisely defined administrative and judicial enforcement system. The communication, cooperation, and exchange of ideas needed to develop a particular child’s I.E.P. are greatly facilitated by adherence to the administrative procedures" } ]

[ { "docid": "3457136", "title": "", "text": "change existing precedent. The state argues that Smith’s claim is unexhausted and procedurally barred because he failed to allege an “evolving standards of decency” claim in his state court appeals and because he failed to provide any factual basis for such a claim when he raised it in his federal petition. We agree. “Normally, the exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in his petition to the federal court.” Vela v. Estelle, 708 F.2d 954, 958 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). This claim is unexhausted and thus procedurally barred. However, even where a claim is unexhausted and procedurally barred, we may deny the claim on the merits. 28 U.S.C. § 2254(b)(2) (2000). The district court examined Smith’s arguments and determined that, on the merits, he was not entitled to habeas relief. We review the district court’s conclusions of law de novo. Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997). The district court’s reasoning is sound, and Smith presents no new evidence or case law on this appeal to call that decision into question. Smith has not demonstrated that this finding would be debatable among jurists of reason, nor has he made a substantial showing of the denial of a constitutional right. Therefore, we decline Smith’s request for a COA. VII. Petitioner’s Claim for Relief Based on the Supreme Court Decision in Atkins v. Virginia Smith raises one final claim for the first time on this appeal. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that executions of mentally retarded criminals violated the Eighth Amendment prohibition against cruel and unusual punishment. Smith argues that, because the jury reached a general verdict on the special issue concerning future dangerousness, “it -is impossible to know from that verdict whether one or more jurors found that Petitioner had an I.Q. under 75 and had additional functional disabilities, such that the Petitioner qualified as being retarded for Eighth Amendment purposes, but nevertheless found him to" } ]

[ { "docid": "21706237", "title": "", "text": "Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002) (holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.) (holding unex-hausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). Section 5 of Article 11.071 of the Texas Code of Criminal procedure prohibits a successive state habeas corpus application except in limited circumstances which do not apply to petitioner’s complaint about the violation of the presumption of innocence arising from the alleged vagueness of the first Texas capital sentencing special issue. See Tex.Code Crim. Proc. Ann. art 11.071 § 5 (Vernon Supp.2006) (barring consideration on the merits of new claims contained in a subsequent state habeas corpus application unless: (1) the new claims could not have been presented in a previous application because the legal or factual basis for the new claims were unavailable at the time the previous application was filed; (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution, no rational juror would have" }, { "docid": "21214619", "title": "", "text": "certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041, 118 S.Ct. 1342, 140 L.Ed.2d 502 (1998). Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir.2002)(holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir.2000)(holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997)(holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983)." }, { "docid": "21706229", "title": "", "text": "claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. 1728 (holding comity requires a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for fed eral relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief). The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); O’Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. 1728; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003) (“28 U.S.C. § 2254(b)(1) requires federal habe-as petitioners fully exhaust remedies available in state court before proceeding in federal court.”), cert. denied, 543 U.S. 835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.) (“Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in" }, { "docid": "2028605", "title": "", "text": "the district court denied the Director’s motion to dismiss and accepted submission of Morris’s successive federal petition under 28 U.S.C. § 2244(b); denied the Director’s motion for summary judgment; and dismissed Morris’s amended petition without prejudice. In that order the district court determined that because Morris had not presented his Atkins claim to the state courts in its current state — supported with “substantive evidence” — the state courts did not have a fair opportunity to apply Atkins to the substance of Morris’s now better documented habeas claim. Therefore, Morris had not exhausted his Atkins claim. See 28 U.S.C.A § 2254(b)(1)(A) (West Supp.2004). The district court indicated, however, that it would equitably toll the time Morris will have spent in federal court should he return after having exhausted any available state court remedies. On January 7, 2003, the district court entered an order denying Morris’s motion to alter or amend judgment under Rule 59(e), or alternatively for the issuance of a COA. Morris then noticed his appeal and filed a request for COA with this Court. On July 21, 2004, we granted Morris a COA on the issue of exhaustion. Morris, 379 F.3d at 207. DISCUSSION 28 U.S.C. § 2254(b)(1)(A) requires that federal habeas petitioners fully exhaust available state court remedies before proceeding in federal court. The longstanding exhaustion requirement is not jurisdictional, but reflects the policy of federal-state comity, which is designed to give state courts the initial opportunity to consider and correct alleged violations of their prisoners’ federal rights. Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003). This Court reviews de novo the legal question of whether a federal habeas petitioner has exhausted state court remedies. Id. (citing, in part, Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001)). “The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.1999). Such presentment can take place via direct appeal or state habeas proceedings. Orman v. Cain, 228 F.3d 616, 620 (5th Cir.2000). “[A]s a general rule dismissal is" }, { "docid": "13172375", "title": "", "text": "federal habeas review of state court fact findings. A petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court’s findings were erroneous. See Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir.2004) (“The AEDPA requires that we presume correct the state court’s findings of fact unless the petitioner ‘rebuts the presumption of correctness by clear and convincing evidence.’ ”), cert. denied, 543 U.S. 951, 125 S.Ct. 375, 160 L.Ed.2d 270 (2004); Pondexter v. Dretke, 346 F.3d 142, 146 & 149 (5th Cir.2003) (holding that, pursuant to § 2254(e)(1), state court findings of fact are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003) (holding the same), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); 28 U.S.C. § 2254(e)(1). Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See Pondexter v. Dretke, 346 F.3d at 148 (holding the precise question before a federal habeas court in reviewing a state court’s rejection on the merits of an ineffective assistance claim is whether the state court’s ultimate conclusion was objectively reasonable); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003) (holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (holding that a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). III. Ineffective Assistance Complaints A. Clearly Established Federal Law The constitutional standard for determining whether a criminal defendant has" }, { "docid": "21706230", "title": "", "text": "courts and, thereby, to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); O’Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. 1728; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003) (“28 U.S.C. § 2254(b)(1) requires federal habe-as petitioners fully exhaust remedies available in state court before proceeding in federal court.”), cert. denied, 543 U.S. 835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.) (“Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief.”), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 293 (2003); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998); Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b) (2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir.), cert. denied, 537 U.S. 874, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The exhaustion of all federal, claims in state court is a fundamental prerequisite to requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669" }, { "docid": "21706232", "title": "", "text": "(1996); 28 U.S.C. § 2254(b)(1)(A). In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438, (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; Shute v. State of Texas, 117 F.3d at 237 (“a habeas petitioner ‘must fairly apprise the highest court of his state of the federal rights which were allegedly violated.’ ”). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985). More simply, the exhaustion doctrine requires the petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address same. The exhaustion requirement is satisfied when the substance of the federal habeas claim has been “fairly presented” to the highest state court, i.e., the petitioner presents his claims before the state courts in a proce durally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. 1347 (holding a petitioner faded to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); Mercadel v. Cain, 179 F.3d at 275. However, the petitioner need not spell out each syllable of the claim before the state court for the claim to have been “fairly presented” and thereby fulfill the exhaustion requirement. Riley v. Cockrell, 339 F.3d at 318; Fisher v. Texas, 169 F.3d 295, 303" }, { "docid": "21214443", "title": "", "text": "F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.2003) (“Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief.”), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 293 (2003); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998); Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b)(2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir.2002), cert. denied, 537 U.S. 874, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669 (1996); 28 U.S.C. § 2254(b)(1)(A). In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; Shute v. State of Texas, 117 F.3d at 237 (“a habeas petitioner ‘must fairly apprize [sic] the highest court of his state of the federal rights which were allegedly violated.’ ”). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas" }, { "docid": "21706231", "title": "", "text": "state court before he may seek federal habeas relief.”), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 293 (2003); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998); Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b) (2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir.), cert. denied, 537 U.S. 874, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The exhaustion of all federal, claims in state court is a fundamental prerequisite to requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669 (1996); 28 U.S.C. § 2254(b)(1)(A). In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438, (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; Shute v. State of Texas, 117 F.3d at 237 (“a habeas petitioner ‘must fairly apprise the highest court of his state of the federal rights which were allegedly violated.’ ”). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985). More simply, the exhaustion doctrine requires the petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address same. The exhaustion requirement" }, { "docid": "21706236", "title": "", "text": "Unexhausted Claims The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas criminal defendant is barred under the procedural default doctrine. See, e.g., Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005) (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling), cert. denied, 547 U.S. 1136, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004) (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005); Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir.) (holding a petitioner procedurally defaulted by failing to “fairly present” a claim to the state courts in his state habeas corpus application), cert. denied, 543 U.S. 989, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003) (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002) (holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.) (holding unex-hausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted" }, { "docid": "2028606", "title": "", "text": "Court. On July 21, 2004, we granted Morris a COA on the issue of exhaustion. Morris, 379 F.3d at 207. DISCUSSION 28 U.S.C. § 2254(b)(1)(A) requires that federal habeas petitioners fully exhaust available state court remedies before proceeding in federal court. The longstanding exhaustion requirement is not jurisdictional, but reflects the policy of federal-state comity, which is designed to give state courts the initial opportunity to consider and correct alleged violations of their prisoners’ federal rights. Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003). This Court reviews de novo the legal question of whether a federal habeas petitioner has exhausted state court remedies. Id. (citing, in part, Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001)). “The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.1999). Such presentment can take place via direct appeal or state habeas proceedings. Orman v. Cain, 228 F.3d 616, 620 (5th Cir.2000). “[A]s a general rule dismissal is not required when evidence presented for the first time in a habeas proceeding supplements, but does not fundamentally alter, the claim presented to the state courts.” Anderson, 338 F.3d at 386-87 (internal quotation marks and citation omitted); see also id. at 388 n. 24 (citing Vasquez v. Hillery, 474 U.S. 254, 262, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). For example, in Anderson, where the highest state court denied Anderson’s petition without holding an evidentiary hearing, even though he presented more and stronger evidence (an affidavit from a key eyewitness not called at his trial) in his federal habeas petition, this Court determined that the new evidence did not “fundamentally alter” his ineffective assistance of counsel (“IAC”) claim and therefore held that Anderson had properly exhausted. 338 F.3d at 388-89; see also Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir.2000) (finding that Dowthitt had exhausted his IAC mental illness claim where he had presented detailed assertions of his paranoid schizophrenia to the state courts, even though he later offered additional affidavits by mental health" }, { "docid": "21214449", "title": "", "text": "sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights.”). The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas criminal defendant is barred under the procedural default doctrine. See Aguilar v. Dretke, 428 F.3d at 533 (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004)(holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal ha-beas review of a claim), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005); Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir.2004)(holding a petitioner procedurally defaulted by failing to “fairly present” a claim to the state courts in his state habeas corpus application), cert. denied, 543 U.S. 989, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003)(holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003)(recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002)(holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.1999) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998)(holding unexhausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139," }, { "docid": "1843112", "title": "", "text": "standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041, 118 S.Ct. 1342, 140 L.Ed.2d 502 (1998). Under the AEDPA, before a petitioner may appeal the denial of a habe-as corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir.2002)(holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir.2000)(holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.l997)(holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, -, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct." }, { "docid": "14483425", "title": "", "text": "the prisoner fails to exhaust available state remedies, and the state court to which the prisoner would have to present his claims in order to exhaust them would find the claims procedurally barred, the prisoner has defaulted those claims. Nobles, 127 F.3d at 420; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). To exhaust available state court remedies, a habeas petitioner must “fairly present” all the claims in his habeas corpus petition to the highest available state court, alerting the court to the federal nature of his claim. 28 U.S.C. § 2254(d)(2). “A prisoner fairly presents a claim to the state court when he asserts the claim ‘in terms so particular as to call to mind a specific right protected by the Constitution’ or alleges ‘a pattern of facts that is well within the mainstream of constitutional litigation.’ ” Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). “[I]t is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001) (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)). The Texas Court of Criminal Appeals denied Kittelson’s habeas application without written order. “Because a federal ha-beas court only reviews the reasonableness of the state court’s ultimate decision, the AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without an opinion.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003). Rather, in such a situation, “our court: (1) assumes that the state court applied the proper ‘clearly established Federal law5; and (2) then determines whether its decision was ‘contrary to’ or ‘an objectively unreasonable application of that law.” Id. (citing Catalan v. Cockrell, 315 F.3d 491, 493 & n. 3 (5th Cir.2002)). See, e.g., McCall v. Dretke, 390 F.3d 358, 362 n. 12 (5th Cir.2004). The first type of procedural default is not present here; the state court did not dismiss Kittelson’s habeas claims based on an adequate and" }, { "docid": "1843001", "title": "", "text": "(2004); Pondexter v. Dretke, 346 F.3d 142, 146, 149 (5th Cir.2003) (holding that, pursuant to § 2254(e)(1), state court findings of fact are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003)(holding the same), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); 28 U.S.C. § 2254(e)(1). Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See Pondexter v. Dretke, 346 F.3d at 148 (holding the precise question before a federal habeas court in reviewing a state court’s rejection on the merits of an ineffective assistance claim is whether the state court’s ultimate conclusion was objectively reasonable); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003)(holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (holding that a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). III. Grand Jury Composition A. The Claims In his first claim for federal habeas corpus relief herein, petitioner argues that his constitutional right to indictment by a grand jury drawn from a fair cross-section of the community and his equal protection rights were violated when he was indicted by a Bexar County grand jury drawn exclusively from voter registration lists. B. State Court Disposition Petitioner fairly presented this same claim to the state courts during his state habeas corpus proceeding. The state ha-beas trial court (1) found petitioner had presented no evidence showing the ethnic composition of registered voters" }, { "docid": "21214444", "title": "", "text": "requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669 (1996); 28 U.S.C. § 2254(b)(1)(A). In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; Shute v. State of Texas, 117 F.3d at 237 (“a habeas petitioner ‘must fairly apprize [sic] the highest court of his state of the federal rights which were allegedly violated.’ ”). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. Richardson v. Procurer, 762 F.2d 429, 431-32 (5th Cir.1985). More simply, the exhaustion doctrine requires that the petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address same. The Supreme Court has succinctly explained the rationale behind the exhaustion requirement: Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress meant that exhaustion be serious and meaningful. The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court. Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim" }, { "docid": "21214442", "title": "", "text": "facts necessary to state a claim for relief). The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001); O’Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003)(“28 U.S.C. § 2243(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court.”), cert. denied, 543 U.S. 835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.2003) (“Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief.”), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 293 (2003); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998); Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b)(2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir.2002), cert. denied, 537 U.S. 874, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The exhaustion of all federal claims in state court is a fundamental prerequisite to" }, { "docid": "21214450", "title": "", "text": "doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003)(recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002)(holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.1999) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998)(holding unexhausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). Section 5 of Article 11.071 of the Texas Code of Criminal procedure prohibits a successive state habeas corpus application except in limited circumstances which do not apply to petitioner’s complaint about the violation of the presumption of innocence arising from the alleged vagueness of the first Texas capital sentencing special issue. See Art. 11.071, § 5, Tex.Code Crim. Proc. Ann. (Vernon Supp.2006)(barring consideration on the merits of new claims contained in a subsequent state habeas corpus application unless either (1) the new claims could not have been presented in a previous application because the legal or factual basis for the new claims were unavailable at the time the previous application was filed; (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution, no rational juror would have answered in the state’s favor one" }, { "docid": "83870", "title": "", "text": "so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been “fairly presented” to the highest state court, i.e., the petitioner presents his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003). However, the petitioner need not spell out each syllable of the claim before the state court for the claim to have been “fairly presented” and thereby fulfill the exhaustion requirement. Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003), cert. denied, 543 U.S. 1056, 125 S.Ct. 866, 160 L.Ed.2d 781 (2005); Fisher v. Texas, 169 F.3d 295, 303 (5th Cir.1999). The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Riley v. Cockrell, 339 F.3d at 318 (“It is not enough that the facts applicable to the federal claims were all before the’ State court, or that the petitioner made a similar state-law based claim. The federal claim must be the ‘substantial equivalent’ of the claim brought before the State court.”); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001)(“where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement”); Finley v. Johnson," }, { "docid": "21706233", "title": "", "text": "is satisfied when the substance of the federal habeas claim has been “fairly presented” to the highest state court, i.e., the petitioner presents his claims before the state courts in a proce durally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. 1347 (holding a petitioner faded to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); Mercadel v. Cain, 179 F.3d at 275. However, the petitioner need not spell out each syllable of the claim before the state court for the claim to have been “fairly presented” and thereby fulfill the exhaustion requirement. Riley v. Cockrell, 339 F.3d at 318; Fisher v. Texas, 169 F.3d 295, 303 (5th Cir.1999). The presentation of claims for the first time on discretionary review to the state’s highest court does not constitute “fair presentation” for exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Satterwhite v. Lynaugh, 886 F.2d 90, 92 (5th Cir.1989). Full exhaustion of all claims presented is required before federal habe-as corpus relief is available. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Thomas v. Collins, 919 F.2d 333, 334 (5th Cir.1990). The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Riley v. Cockrell, 339 F.3d at 318 (“It is not enough that the facts applicable to the federal claims were all before the State court, or that the petitioner made a similar state-law based claim. The federal claim must be the ‘substantial equivalent’ of the claim brought before the State court.”); Wilder v." } ]

[ { "docid": "22445867", "title": "", "text": "(2d Cir.1993)(hold-ing that non-signatory local affiliate, who used a trade name pursuant to an agreement that it ratified which contained an arbitration clause, was estopped from relying on its nonsignatory status to avoid arbitrating under the agreement); American Bureau of Shipping v. Tencara Shipyard S.P.A. 170 F.3d 349, 353 (2d Cir.1999)(binding non-signatory to a contract under which it received direct benefits of lower insurance and the ability to sail under the French flag). There is an important distinction, however, between cases where the courts seriously consider applying direct benefits es-toppel, and the case at bar. In the former, the nonsignatory had brought suit against a signatory premised in part upon the agreement. See, e.g., DuPont, 269 F.3d at 199; Deloitte, 9 F.3d at 1064; Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir.2000); Tencara, 170 F.3d at 351. Here, it is undisputed that the Government has not sued Bridas under the agreement. The Government has thus not “exploited” the JVA to the degree that the cases that consider applying this version of estoppel require. A Third-Party Beneficiary Nor is the third-party beneficiary doctrine availing. While very similar to es-toppel, the third-party beneficiary doctrine is distinct: Under third party beneficiary theory, a court must look to the intentions of the parties at the time the contract was executed. Under the equitable estoppel theory, a court looks to the parties’ conduct after the contract was executed. Thus, the snapshot this Court examines under equitable estoppel is much later in time than the snapshot for third party beneficiary analysis. DuPont, 269 F.3d at 200 n. 7. It is not enough, therefore, that the Government benefitted from the existence of the JVA. “[T]he fact that a person is directly affected by the parties’ conduct, or that he may have a substantial interest in a contract’s enforcement, does not make him a third-party beneficiary.” Id. See DuPont, 269 F.3d at 196-97 (noting the fact that a parent derived benefits from a contract executed by its subsidiary is insufficient to make it a third-party beneficiary). Parties are presumed to be" } ]

[ { "docid": "5068563", "title": "", "text": "an intended third-party beneficiary of a contract to which the United States is a party. Speleos v. BAC Home Loans Servicing, LP, 755 F.Supp.2d 304, 307 (D.Mass.2010). As our court of appeals has explained: [T]he crux in third-party beneficiary analysis is the intent of the parties. Because third-party beneficiary status constitutes an exception to the general rule that a contract does not grant enforceable rights to nonsignatories, a person aspiring to such status must show with special clarity that the contracting parties intended to confer a benefit on him. McCarthy v. Azure, 22 F.3d 351, 362 (1st Cir.1994) (citations and alterations omitted). Moreover, federal courts in this circuit have applied a presumption that parties who benefit from a government contract are incidental, rather than intended, beneficiaries, and “may not enforce the contract absent a clear intent to the contrary.” Teixeira v. Fed. Nat’l Mortg. Ass’n, No. 10-11640-GAO, 2011 WL 3101811, *2 (D.Mass. July 18, 2011); see also In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig., No. 10-md-2193-RWZ, 2011 WL 2637222, *3 (D.Mass. July 6, 2011); Nash v. GMAC Mortg., LLC, No. 10-cv-493, 2011 WL 2470645, *7 & n. 9 (D.R.I. May 18, 2011). Here, the SPAs do not contain any provisions evincing a “clear intent” that borrowers may enforce them, and in fact contain provisions supporting the contrary conclusion. Indeed, § 11E of each SPA provides that it “shall inure to the benefit of and be binding upon the parties to the Agreement and their permitted suceessors-in-interest,” as opposed to any other party. A number of courts have found this language incompatible with an intent to bestow enforceable rights upon nonparties. See Teixeira, 2011 WL 3101811 at *2 (noting that this language “appears to limit who can enforce the contract’s terms”); In re Bank of America, 2011 WL 2637222 at *3 (noting that this language does not “suggest[ ] any intent, let alone a ‘clear intent,’ ” to benefit borrowers and in fact “compels] the opposite conclusion”); Alpino v. JPMorgan Chase Bank, Nat’l Ass’n, No. 10-cv-12040-PBS, 2011 WL 1564114, *4 (D.Mass. Apr. 21, 2011) (identifying this" }, { "docid": "5619436", "title": "", "text": "the absence of any contention from the parties to the contrary, we apply federal common law to resolve the issues. InterGen, 344 F.3d at 143. The context of the case is significant. The party who is a signatory to the written agreement requiring arbitration is the party seeking to avoid arbitration. “A party who attempts to compel arbitration must show that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim asserted comes within the clause’s scope.” Id. at 142. Defendants argue that although Asimco did not sign an arbitration agreement, Jumpsource bound itself to arbitrate claims of this nature by virtue of the arbitration clause in the Jumpsource-ATL Agreement and is es-topped from litigating claims against Asimco that essentially arise from the terms of the Jumpsource-ATL contract. Equitable estoppel “precludes a party from enjoying rights and benefits under a contract while at the same time avoiding its burdens and obligations.” Id. at 145. Federal courts “have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.” Id. (quoting Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir.1995)) (internal quotation marks omitted); see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757-58 (11th Cir.1993) (estopping signatory from avoiding arbitration with non-signatory); Deloitte Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060, 1063-64 (2d Cir.1993) (applying estoppel to bind non-signatory to arbitrate international dispute); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A, 863 F.2d 315, 320-21 (4th Cir.1988) (referring non-signatory parent, along with signatory subsidiary, to international arbitration). There is no real issue in this case about whether the subject matter of the suit is intertwined with the subject matter within the scope of the arbitration clause. The analysis turns on the defendants allegedly not having executed a written agreement to arbitrate. The present dispute is sufficiently" }, { "docid": "20604662", "title": "", "text": "benefits of the agreement and receives benefits flowing directly from the agreement. See MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 61 (2d Cir.2001); see also Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626, 977 N.Y.S.2d 685, 999 N.E.2d 1130, 1134 (2013). But Nguyen is not the type of non-signatory contemplated by the rule. Equitable estoppel typically applies to third parties who benefit from an agreement made between two primary parties. See, e.g., Wash. Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260, 267-68 (5th Cir.2004) (estopping nonsignatory wife of borrower from avoiding arbitration clause of loan agreement made between her husband and lender); Parillo v. Nataro, 34 Misc.2d 800, 229 N.Y.S.2d 492, 493-94 (Sup.Ct.1962) (applying equitable estoppel to third-party beneficiary of insurance con tract). Here, Nguyen is not a third-party beneficiary to Barnes & Noble’s Terms of Use, and whether he is a primary party to the Terms of Use lies at the heart of this dispute. Second, we are unable to find any case law holding that reliance on a contract’s choice of law provision in itself constitutes a “direct benefit.” The closest case is HD Brous & Co., Inc. v. Mrzyglocki, an unpublished district court decision, in which the court compelled arbitration against a nonsignatory petitioner in part because the non-signatory had sought to limit the respondent’s choice of substantive law by relying on the agreement’s choice of law provision. No. 03 Civ. 8385(CSH), 2004 WL 376555, at *8 (S.D.N.Y. Feb. 26, 2004). But HD Brous is distinguishable because the agreement there served as the foundational document for the business relationship between the parties and explicitly named the petitioner as the intended beneficiary. Id. It can hardly be said here that the choice of New York law — chosen unilaterally by Barnes & Noble — was intended to benefit Nguyen. Any benefit derived by Nguyen under New York law — whether it be the possibility of statutory or treble damages on Nguyen’s nationwide class claims — is merely incidental. In light of these distinguishing facts, the district court did not abuse its" }, { "docid": "22446036", "title": "", "text": "that the bulk of plaintiff’s claims are litigable in any event simply because they fall outside the ambit of the Purchase Agreement’s closely tailored arbitration clause. For example, the claims for breach of contract and wrongful discharge concern plaintiffs employment rights. Those rights are not mentioned at all in the Purchase Agreement. To the contrary, they come within the purview of the Employment Letter — a document that conspicuously omits any arbitration provision. Similarly, many aspects of plaintiffs claims of fraud, misrepresentation, emotional distress, unfair trade practices, and racketeering relate to his employment rights, and, to that extent, also do not implicate the Purchase Agreement’s arbitration provision. And while the remaining claims touch upon the Purchase Agreement, they do not uniformly “aris[e] under” it. No useful purpose would be served by reciting book and verse. It suffices to say that, even if Azure were a party to the contract that contains the operative arbitration provision, he would not be entitled as of right to an order staying litigation of all — or even most of — McCarthy’s claims. See 9 U.S.C. § 3. D. Appellant’s Third-Party Beneñciary Theory. Appellant next posits that, as a third-party beneficiary of the Purchase Agreement’s arbitration clause, he can compel plaintiff to arbitrate. This claim also fails. As is generally the case in matters of contract interpretation, “[t]he crux in third-party beneficiary analysis ... is the intent of the parties.” Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, 795 F.2d 1111, 1117 (1st Cir.1986). Because third-party beneficiary status constitutes an exception to the general rule that a contract does not grant enforceable rights to nonsignatories, see, e.g., Arlington Trust Co. v. Estate of Wood, 123 N.H. 765, 465 A.2d 917, 918 (1993), a person aspiring to such status must show with special clarity that the contracting parties intended to confer a benefit on him. See Mowbray, 795 F.2d at 1117; Arlington Trust, 465 A.2d at 918; Tamposi Assocs. v. Star Mkt. Co., 119 N.H. 630, 406 A.2d 132, 134 (1979); see generally 3 E. Allan Farnsworth, Farnsworth on Contracts § 10.3, at 22-23 (1990); 4 Arthur" }, { "docid": "7073822", "title": "", "text": "(citing Thomson-CSF, 64 F.3d at 778). Under the second line of cases, signatories have been required to arbitrate claims brought by nonsignatories “at the nonsig-natory’s insistence because of the close relationship between the entities involved.” Id. (quoting Thomson-CSF, 64 F.3d at 779 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993))) (internal quotation marks omitted). Because Smith Barney is invoking equitable estoppel against a nonsignatory, it is the first line of cases that is relevant. The insurmountable hurdle for Smith Barney, however, is that there is no evidence that Comer “knowingly exploited] the agreements] containing the arbitration clause[s] despite having never signed the agreements].” Id. at 199. Prior to his suit, Comer was simply a participant in trusts managed by others for his benefit. He did not seek to enforce the terms of the management agreements, nor otherwise to take advantage of them. Nor did he do so by bringing this lawsuit, which he bases entirely on ERISA, and not on the investment management agreements. Smith Barney’s attempt to shoehorn Comer’s status as a passive participant in the plans into his “knowing[] exploit[ation]” of the investment management agreements fails. Smith Barney argues an alternate theory — that Comer is bound by the arbitration clauses as a third party beneficiary. “To sue as a third-party beneficiary of a contract, the third party must show that the contract reflects the express or implied intention of the parties to the contract to benefit the third party.” Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1211 (9th Cir.2000). Smith Barney has not produced any evidence that the signatories to the investment management agreements intended to give every beneficiary of the plans, such as Comer, the right to sue under the agreements. It follows that Comer cannot be bound to the terms of a contract he didn’t sign and is not even entitled to enforce. A third party beneficiary might in certain circumstances have the power to sue under a contract; it certainly cannot be bound to a contract it did not sign or otherwise assent to." }, { "docid": "5068562", "title": "", "text": "See Vega v. Amer. Home Mortg. Servicing, Inc., No. CV-10-02087, 2011 WL 2457398, *3 (D.Ariz. June 20, 2011) (dismissing claim for breach of implied covenant against loan servicer because servicer was not party to mortgage); Lomboy v. SCME Mortg. Bankers, No. C-09-1160 SC, 2009 WL 1457738, *5 (N.D.Cal. May 26, 2009) (same). In the absence of a contractual relationship, the Moores’ claim against these defendants for breach of the implied covenant must be dismissed. The Moores seek to avoid this result as to Saxon and Ocwen by arguing that they breached the implied covenant inherent in their HAMP Servicer Participation Agreements (“SPAs”) with the federal government. In order to recover for a breach of the implied covenants inherent in the SPAs, to which they are not parties, the Moores must demonstrate that they are the intended third-party beneficiaries of those agreements. See Numerica Sav. Bank, F.S.B. v. Mountain Lodge Inn, Corp., 134 N.H. 505, 513, 596 A.2d 131 (1991). They cannot do so. The court looks to federal law in considering whether a plaintiff is an intended third-party beneficiary of a contract to which the United States is a party. Speleos v. BAC Home Loans Servicing, LP, 755 F.Supp.2d 304, 307 (D.Mass.2010). As our court of appeals has explained: [T]he crux in third-party beneficiary analysis is the intent of the parties. Because third-party beneficiary status constitutes an exception to the general rule that a contract does not grant enforceable rights to nonsignatories, a person aspiring to such status must show with special clarity that the contracting parties intended to confer a benefit on him. McCarthy v. Azure, 22 F.3d 351, 362 (1st Cir.1994) (citations and alterations omitted). Moreover, federal courts in this circuit have applied a presumption that parties who benefit from a government contract are incidental, rather than intended, beneficiaries, and “may not enforce the contract absent a clear intent to the contrary.” Teixeira v. Fed. Nat’l Mortg. Ass’n, No. 10-11640-GAO, 2011 WL 3101811, *2 (D.Mass. July 18, 2011); see also In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig., No. 10-md-2193-RWZ, 2011 WL 2637222, *3" }, { "docid": "21801293", "title": "", "text": "intended third party beneficiaries to the Arbitration Agreement,” Defendants maintained below, “a valid agreement to arbitrate exists between all Plaintiffs and CMH Homes under Oklahoma contract law.” (Id. at 18.) The district court did not agree. It held that “the single sentence in the Arbitration Agreement generically referencing ‘any occupants of the Manufactured Home (as intended beneficiaries of this Arbitration Agreement)’ is not sufficient to make the nonsignatory plaintiffs, who are occupants of the home, third party beneficiaries of the Arbitration Agreement and subject to being compelled to arbitration.” (Id. at 83.) The district court also rejected Defendants’ contention that the nonsignatory plaintiffs were “bound to arbitrate their claims” under “the doctrine of equitable estoppel” (id. at 24), holding that “Defendants have not satisfied any of the elements of equitable estoppel,” (id. at 84): There have been no false representations or concealment of facts by the nonsignatory plaintiffs. Further, the Court finds no equitable reason why the nonsignatory plaintiffs should be bound by the Arbitration Agreement; the non-signatory plaintiffs have engaged in no conduct which would equitably warrant that they be bound by the Arbitration Agreement. (Id. at 84.) Defendants timely appealed the district court’s partial denial of their motion to stay and to compel arbitration. We have jurisdiction under the Federal Arbitration Act, which authorizes an interlocutory appeal of an order “refusing a stay of any action, under section 3 of this title” or “denying a petition under section 4 of this title to order arbitration to proceed.” 9 U.S.C. § 16(a)(1)(A), (B). On appeal, Defendants tell us “[i]t is well-established that the standard of appellate review of a district court order denying a motion to compel is de novo.” (Appellants’ Opening Br. at 10.) That is generally true. See Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012). But it is also incomplete: “We have not yet decided whether the de novo standard that generally applies to our review of a denial of a motion to compel arbitration also applies to a denial of such a motion based on equitable estoppel, or whether" }, { "docid": "19195878", "title": "", "text": "bound by the forum-selection clause. Nor is there any question that, before the purchase, Hellenic had no written, binding agreement with DNV relating to the MA-RIANNA’s classification. Nevertheless, DNV contends that, although not a signatory to the DNV-Inlet contract, Hellenic should be bound by the contract’s forum-selection clause. Hellenic argues that enforcement of the forum-selection clause would be unreasonable under the circumstances. 1. Estoppel This court has stated that “[arbitration agreements apply to nonsignatories only in rare circumstances.” Bridas, 345 F.3d at 358. Nevertheless, federal courts have held that so long as there is some written agreement to arbitrate, a third party may be bound to submit to arbitration. Ordinary principles of contract and agency law may be called upon to bind a nonsignatory to an agreement whose terms have not clearly done so. Six theories for binding a nonsignatory to an arbitration agreement have been recognized: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing/alter ego; (e) estoppel; and (f) third-party beneficiary. Id. at 355-56 (internal citations omitted). Before the district court, DNV argued that Hellenic was bound by the forum-selection clause under the following theories: estop-pel, third-party beneficiary, and implied-in-fact contract. We hold that an estoppel theory, specifically direct-benefit estoppel, is sufficient to bind Hellenic to the forum-selection clause in the DNV-Inlet contract and, therefore, limit our discussion to that argument. Direct-benefit estoppel “involve[s] non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status but then, during litigation, attempt to repudiate the arbitration clause in the contract.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir.2001). The direct-benefit estoppel doctrine “applies when a nonsignatory ‘knowingly exploits the agreement containing the arbitration clause.’ ” Bridas, 345 F.3d at 361-62 (quoting DuPont, 269 F.3d at 199). In Bridas, the court declined to apply direct benefit estoppel, stating that “it is undisputed that the [non-signatory] Government has not sued [signatory] Bridas under the agreement.” Id. at 362. The court thereby distinguished situations such as Hellenic’s, in which “the nonsignatory had brought suit against" }, { "docid": "21801298", "title": "", "text": "the nonsignatory plaintiffs are not third-party beneficiaries to the contract as a whole. (Appellants’ Reply Br. at 10 n.9.) Defendants focus instead on the arbitration agreement itself, which designates “any occupants of the Manufactured Home” as “intended beneficiaries of this Arbitration Agreement.” (Appellants’ App. at 31.) The “benefit,” according to Defendants, is the right to compel arbitration. But Defendants have not cited authority, and we are not aware of any, that says a contract (here, the arbitration agreement) can be enforced against an intended third-party beneficiary who has not accepted the benefit (here, the right to compel arbitration) or otherwise sought to enforce the terms of the contract. Cf. Restatement (Second) of Contracts § 306 cmt. b (1981) (“[A] beneficiary is entitled to reject a promised benefit.”). Such a rule would make no sense: unwitting third parties could be bound to a contract without knowing its terms or ever realizing some benefit. At bottom, Defendants’ argument reduces to the following syllogism: Major premise: A third-party beneficiary to an arbitration agreement is bound by the agreement. Minor premise: Here, the nonsignatory plaintiffs are third-party beneficiaries of the arbitration agreement. Conclusion: Therefore, the nonsignatory plaintiffs are bound by the arbitration agreement. Defendants spend most of their briefing on the minor premise but then fail to cite to a single case to support the major premise. As the parties seeking to compel arbitration, Defendants have the burden to establish that the nonsignatory plaintiffs can be held to the arbitration agreement. See Hancock, 701 F.3d at 1261. Here, it is simply not enough to show that the nonsig-natory plaintiffs are third-party beneficiaries. Next, Defendants argue that the nonsignatory plaintiffs are bound to the arbitration agreement, which they never agreed to, “under the doctrine of equitable estoppel.” (Appellants’ Opening Br. at 23.) At different stages of these proceedings, Defendants seemingly advance two different theories of equitable estoppel. Below, Defendants advanced a theory of integrally-related-claim estoppel, sometimes referred to as the “intertwined claims” theory. (See Appellants’ App. at 84 (arguing that “[bjecause the non-signatories’ claims are identical to Jackie Jacks’ claims and are ‘integrally related’ to" }, { "docid": "7073823", "title": "", "text": "shoehorn Comer’s status as a passive participant in the plans into his “knowing[] exploit[ation]” of the investment management agreements fails. Smith Barney argues an alternate theory — that Comer is bound by the arbitration clauses as a third party beneficiary. “To sue as a third-party beneficiary of a contract, the third party must show that the contract reflects the express or implied intention of the parties to the contract to benefit the third party.” Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1211 (9th Cir.2000). Smith Barney has not produced any evidence that the signatories to the investment management agreements intended to give every beneficiary of the plans, such as Comer, the right to sue under the agreements. It follows that Comer cannot be bound to the terms of a contract he didn’t sign and is not even entitled to enforce. A third party beneficiary might in certain circumstances have the power to sue under a contract; it certainly cannot be bound to a contract it did not sign or otherwise assent to. See Motorsport Eng’g, Inc. v. Maserati SPA, 316 F.3d 26, 29 (1st Cir.2002); Abraham Zion Corp. v. Lebow, 761 F.2d 93, 103 (2d Cir.1985). Finally, we consider the Third Circuit’s position that “whether seeking to avoid or compel arbitration, a third party beneficiary has been bound by contract terms where its claim arises out of the underlying contract to which it was an intended third party beneficiary.” DuPont, 269 F.3d at 195 (emphasis added). One problem with the Third Circuit’s approach is that it is not grounded in “ordinary contract and agency principles.” Letizia, 802 F.2d at 1187. As discussed above, neither principles of equitable estoppel nor third party beneficiary apply here. Nor can the Micor trustees be said to have acted as Comer’s agents in entering into the investment management agreements. See Restatement (Second) of Trusts § 8 (“An agency is not a trust.”). Similarly, there is no evidence that Comer’s “subsequent conduct indicates that [he] is assuming the obligation to arbi trate.” Thomson-CSF, 64 F.3d at 777. Nor has Comer “entered into a" }, { "docid": "1712069", "title": "", "text": "other circumstances, enforcement would deprive the complaining party of his day in court or of an effective remedy. See id. at 1363; see also Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 701 (2d Cir.2009) (endorsing approach from Bremen and noting, in the context of a forum selection clause, “the fact a party is a non-signatory to an agreement is insufficient, standing alone, to preclude enforcement”). Here the Fairfield and Fairfield Fee Defendants concede that if the clause is given effect, Plaintiffs will not be able to press a third-party beneficiary claim under Bermuda law. Though this deprivation would strike only one of the numerous causes of action from this lawsuit, this doctrine, combined with the New York choice of law analysis described directly above, persuades the Court that, for the purposes of reviewing the instant motion to dismiss, Bermuda law does not apply to interpreting the Investment Manager Agreements, and that and New York law does apply. Pursuant to New York law, a third-party asserting rights under a contract must allege that: (1) a valid contract existed, (2) it was intended for the third party’s benefit, and (3) that the benefit was immediate, not incidental. See Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 251-52 (2d Cir.2006). “In determining whether there is an intended third party beneficiary, courts should look first at the contractual language itself ... and where appropriate ‘the surrounding circumstances.’ ” Muhlrad v. Mitchell, No. 96 Civ. 3568, 1997 WL 182614, at *6 (S.D.N.Y. Apr. 14, 1997) (quoting Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir.1991)). “Among the circumstances to be considered is whether manifestation of the intention of the promisor and promisee is sufficient, in a contractual setting, to make reliance by the beneficiary both reasonable and probable.” Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 495 N.Y.S.2d 1, 485 N.E.2d 208, 212 (1985) (quotation marks omitted). “While the third-party beneficiary does not have to establish that it is explicitly mentioned in the contract, New York law requires that the parties’ intent" }, { "docid": "22446037", "title": "", "text": "— McCarthy’s claims. See 9 U.S.C. § 3. D. Appellant’s Third-Party Beneñciary Theory. Appellant next posits that, as a third-party beneficiary of the Purchase Agreement’s arbitration clause, he can compel plaintiff to arbitrate. This claim also fails. As is generally the case in matters of contract interpretation, “[t]he crux in third-party beneficiary analysis ... is the intent of the parties.” Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, 795 F.2d 1111, 1117 (1st Cir.1986). Because third-party beneficiary status constitutes an exception to the general rule that a contract does not grant enforceable rights to nonsignatories, see, e.g., Arlington Trust Co. v. Estate of Wood, 123 N.H. 765, 465 A.2d 917, 918 (1993), a person aspiring to such status must show with special clarity that the contracting parties intended to confer a benefit on him. See Mowbray, 795 F.2d at 1117; Arlington Trust, 465 A.2d at 918; Tamposi Assocs. v. Star Mkt. Co., 119 N.H. 630, 406 A.2d 132, 134 (1979); see generally 3 E. Allan Farnsworth, Farnsworth on Contracts § 10.3, at 22-23 (1990); 4 Arthur Corbin, Contracts § 776 (1951). In this instance, we are unable to discern any indication in the Purchase Agreement that the parties meant to make their respective agents or employees third-party beneficiaries. Neither Azure nor any other employee of Theta II is mentioned explicitly in the Purchase Agreement; there are no meaningful categorical references; the critical provision in the contract, see supra note 11, omits any mention of agents and employees; and we can find no principled basis for including Azure by necessary implication (especially since the contract contains an integration clause). These facts strongly militate against conferring third-party beneficiary status upon a corporate officer with respect to arbitration rights. See Shaffer v. Stratton Oakmont, Inc., 756 F.Supp. 365, 369 (N.D.Ill.1991) (refusing to find a third-party beneficiary relationship generating an obligation to arbitrate in analogous circumstances); Lester v. Basner, 676 F.Supp. 481, 484-85 (S.D.N.Y.1987) (refusing to find an obligation to arbitrate under a third-party beneficiary theory when the contract itself “is silent as to whether [its] terms” apply to the purported third-party beneficiaries). The record" }, { "docid": "7073821", "title": "", "text": "ordinary contract and agency principles.” Id. at 1187-88. Among these principles are “1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.” Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995). In addition, nonsignatories can enforce arbitration agreements as third party beneficiaries. See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, 269 F.3d 187, 195 (3d Cir.2001). Smith Barney argues that Comer is bound by the arbitration clauses as a matter of equitable estoppel and as a third party beneficiary. Equitable estoppel “precludes a party from claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes.” Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 267 (5th Cir.2004). In the arbitration context, this principle has generated two lines of cases. Under the first of these lines, non signatories have been held to arbitration clauses where the nonsignatory “knowingly exploits the agreement containing the arbitration clause despite having never signed the agreement.” DuPont, 269 F.3d at 199 (citing Thomson-CSF, 64 F.3d at 778). Under the second line of cases, signatories have been required to arbitrate claims brought by nonsignatories “at the nonsig-natory’s insistence because of the close relationship between the entities involved.” Id. (quoting Thomson-CSF, 64 F.3d at 779 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993))) (internal quotation marks omitted). Because Smith Barney is invoking equitable estoppel against a nonsignatory, it is the first line of cases that is relevant. The insurmountable hurdle for Smith Barney, however, is that there is no evidence that Comer “knowingly exploited] the agreements] containing the arbitration clause[s] despite having never signed the agreements].” Id. at 199. Prior to his suit, Comer was simply a participant in trusts managed by others for his benefit. He did not seek to enforce the terms of the management agreements, nor otherwise to take advantage of them. Nor did he do so by bringing this lawsuit, which he bases entirely on ERISA, and not on the investment management agreements. Smith Barney’s attempt to" }, { "docid": "3126246", "title": "", "text": "Franklin, 177 F.3d 942, 947 (11th Cir.1999), for the proposition that a non-signatory can compel arbitration based on equitable estoppel. Plaintiffs argue that under Tenth Circuit law, a non-signatory may only compel arbitration if he is a third-party beneficiary to the arbitration agreement. Seminole argues that the Tenth Circuit and Colorado cases discussing third-party beneficiaries to arbitration agreements do not hold that only non-signatories who are third-party beneficiaries to the agreement may compel arbitration. For example, in Everett v. Dickinson & Co., 929 P.2d 10 (Colo.Ct.App.1996), the court explained: “[i]n general, only parties to an agreement containing an arbitration provision can compel or be subject to arbitration. However, a nonparty, such as a third-party beneficiary, may fall within the scope of an arbitration agreement and may bring an action on such contract .... ” Id. at 12 (emphasis added). I agree that by merely giving an example of a non-signatory, “such as a third-party beneficiary,” who may enforce an arbitration provision does not mean that such third-party is the “only” non-signatory to the agreement allowed to enforce such a provision. Numerous other courts have held that equitable estoppel allows non-signatories to compel arbitration if there are intertwined claims. Grigson v. Creative Artists Agency, LLC, 210 F.3d 524, 527-28 (5th Cir.)(agreeing with the intertwined-claims test formulated by the Eleventh Circuit), cert. denied, 531 U.S. 1013, 121 S.Ct. 570, 148 L.Ed.2d 488 (2000); MS Dealer, 177 F.3d at 947; Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), cert. denied, 513 U.S. 869, 115 S.Ct. 190, 130 L.Ed.2d 123 (1994); Hughes Masonry Co. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 841 n. 9 (7th Cir.1981). For example, the MS Dealer court held that equitable estoppel allows a non-signatory to compel arbitration in two different circumstances: First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause “must rely on the terms of the written agreement in asserting [its] claims” against the nonsignatory. When each of a signatory’s claims against a nonsignatory “makes reference to” or “presumes the existence of’ the" }, { "docid": "3855102", "title": "", "text": "stay the action. Specifically, it contends that, despite being a nonsignatory to the arbitration agreement, its insurance contract is so intertwined with the mortgage and arbitration contracts between the plaintiffs and SouthStar that it should receive the benefit of the arbitration agreement. Alternately, Republic Mortgage argues that it is a third-party beneficiary of the arbitration contract, and is thus entitled to enforce arbitration on those grounds. The principal issue in this appeal is whether equitable estoppel allows Republic Mortgage to claim the benefit of the arbitration agreement between the plaintiffs and SouthStar. District court decisions determining the scope of arbitration agreements are generally reviewed de novo since a review of orders compelling or refusing to compel arbitration is a matter of contract interpretation. United, States v. Bankers Ins. Co., 245 F.3d 315, 319 (4th Cir.2001). However, in cases such as the present one, the arbitration order does not rest on a term of the contract, rather upon the application of equitable estoppel. See Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 417-18 (4th Cir.2000) (holding that a signatory to an arbitration agreement may be bound by a nonsignatory through the doctrine of equitable estoppel). We review such equitable estoppel decisions for abuse of discretion. See Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir.2000). The district court determined that Republic Mortgage could only estop the plaintiffs from avoiding arbitration if the case met the intertwined claims test. See Long v. Silver, 248 F.3d 309, 320-21 (4th Cir.2001). The Eleventh Circuit has provided a clear statement of the intertwined claims test, which we apply here: Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must “rely on the terms of the written agreement in asserting [its] claims” against the nonsignatory. When each of a signatory’s claims against a nonsignatory “makes reference to” or “presumes the existence of’ the written agreement, the signatory’s claims “arise[] out of and relate[] directly to the" }, { "docid": "19195879", "title": "", "text": "argued that Hellenic was bound by the forum-selection clause under the following theories: estop-pel, third-party beneficiary, and implied-in-fact contract. We hold that an estoppel theory, specifically direct-benefit estoppel, is sufficient to bind Hellenic to the forum-selection clause in the DNV-Inlet contract and, therefore, limit our discussion to that argument. Direct-benefit estoppel “involve[s] non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status but then, during litigation, attempt to repudiate the arbitration clause in the contract.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir.2001). The direct-benefit estoppel doctrine “applies when a nonsignatory ‘knowingly exploits the agreement containing the arbitration clause.’ ” Bridas, 345 F.3d at 361-62 (quoting DuPont, 269 F.3d at 199). In Bridas, the court declined to apply direct benefit estoppel, stating that “it is undisputed that the [non-signatory] Government has not sued [signatory] Bridas under the agreement.” Id. at 362. The court thereby distinguished situations such as Hellenic’s, in which “the nonsignatory had brought suit against a signatory premised in part upon the agreement.” Id. In these cases, “the courts seriously consider applying direct benefits estoppel.” Id. The misrepresentations alleged in Hellenic’s complaint all stem from “the various Certificates issued by DNV setting forth the condition of the M/V MARIANNA based upon DNV’s surveys.” Hellenic’s claims, therefore, are, at a minimum, “premised in part” on the DNV Rules. Bridas, 345 F.3d at 362. We therefore need not concern ourselves with the distinction in Bridas. Hellenic argues that direct-benefit es-toppel is inapplicable because (1) Hellenic received no benefit from DNV’s services, and (2) Hellenic is advancing a negligent misrepresentation claim, not a contract-based claim. We disagree. In American Bureau of Shipping v. Tencara Shipyard S.P.A., the Second Circuit employed direct-benefit estoppel to bind non-signatory vessel owners to a forum-selection clause in a contract between a classification society and a shipyard. 170 F.3d 349, 353 (2d Cir.1999). The relevant facts and relationships present in the instant case closely resemble those in Ten-cara. In Tencara, the owners entered into a construction contract with the" }, { "docid": "20604661", "title": "", "text": "are enforceable by or against Nguyen, much less why they should give rise to constructive notice of Barnes & Noble’s browsewrap terms. C. Barnes & Noble argues in the alternative that the district court erroneously rejected its argument that Nguyen should be equitably estopped from avoiding arbitration because he ratified the Terms of Use by relying on its choice of law provision in his complaint and asserting class claims under New York law. Reviewing the district court’s decision for abuse of discretion, Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir.2008), we reject Barnes & Noble’s argument for two reasons. First, the doctrine of direct benefits estoppel does not apply to the facts at hand. Federal courts have recognized that the obligation to arbitrate under the FAA does not attach only to one who has personally signed the arbitration provision. Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995). Instead, a non-signatory to an arbitration agreement may be compelled to arbitrate where the nonsignatory “knowingly exploits” the benefits of the agreement and receives benefits flowing directly from the agreement. See MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 61 (2d Cir.2001); see also Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626, 977 N.Y.S.2d 685, 999 N.E.2d 1130, 1134 (2013). But Nguyen is not the type of non-signatory contemplated by the rule. Equitable estoppel typically applies to third parties who benefit from an agreement made between two primary parties. See, e.g., Wash. Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260, 267-68 (5th Cir.2004) (estopping nonsignatory wife of borrower from avoiding arbitration clause of loan agreement made between her husband and lender); Parillo v. Nataro, 34 Misc.2d 800, 229 N.Y.S.2d 492, 493-94 (Sup.Ct.1962) (applying equitable estoppel to third-party beneficiary of insurance con tract). Here, Nguyen is not a third-party beneficiary to Barnes & Noble’s Terms of Use, and whether he is a primary party to the Terms of Use lies at the heart of this dispute. Second, we are unable to find any case law holding that reliance" }, { "docid": "3855105", "title": "", "text": "premiums of the mortgage insurance are separate and wholly independent from the mortgage agreement. The district court correctly found that the mere existence of a loan transaction requiring plaintiffs to obtain mortgage insurance cannot be the basis for finding their federal statutory claims, which are wholly unrelated to the underlying mortgage agreement, to be intertwined with that contract. Likewise, the plaintiffs’ claim does not raise allegations of collusion or misconduct by SouthStar necessary to satisfy the second means of obtaining equitable estoppel. Instead, the plaintiffs’ claim is based entirely on actions taken by Republic Mortgage, a nonsignatory to the arbitration agreement. The plaintiffs’ claims against Republic Mortgage do not implicate SouthStar in any wrongdoing. Thus, the district court correctly concluded that the plaintiffs “never attempted] to rely on the contract to establish their claims, nor [did] they allege concerted action between Republic and SouthStar.” Because this conclusion is appropriately drawn from the facts presented to the district court, we affirm the district court’s decision that the Brantleys are not equitably estopped from denying a contractual obligation to arbitrate with the non-party (Republic Mortgage) to the arbitration agreement. III. Republic Mortgage also argues that it is entitled to enforce the arbitration agreement as a third-party beneficiary of the arbitration contract. We reject this argument. As this court has held, “[i]n order to determine whether the parties intended [a nonsignatory] to be a third party beneficiary, we must look within ‘the four corners of the deed.’ ” R.J. Griffin & Co. v. Beach Club II Homeowners Ass’n, 384 F.3d 157, 164 (4th Cir.2004) (citing Gardner v. Mozingo, 293 S.C. 23, 358 S.E.2d 390, 392 (1987)). We do not differentiate between a deed and the underlying contract here. Examining this, the district court observed that “the underlying contract makes no reference to Republic, nor does it mention the mortgage insurance transaction .... Republic is not entitled to third-party beneficiary status because ‘the language of the [contract] does not clearly indicate that, at the time of contracting, the parties intended to provide [Republic] with a direct benefit.’ ” (quoting Griffin, 384 F.3d at 165)." }, { "docid": "21801299", "title": "", "text": "Minor premise: Here, the nonsignatory plaintiffs are third-party beneficiaries of the arbitration agreement. Conclusion: Therefore, the nonsignatory plaintiffs are bound by the arbitration agreement. Defendants spend most of their briefing on the minor premise but then fail to cite to a single case to support the major premise. As the parties seeking to compel arbitration, Defendants have the burden to establish that the nonsignatory plaintiffs can be held to the arbitration agreement. See Hancock, 701 F.3d at 1261. Here, it is simply not enough to show that the nonsig-natory plaintiffs are third-party beneficiaries. Next, Defendants argue that the nonsignatory plaintiffs are bound to the arbitration agreement, which they never agreed to, “under the doctrine of equitable estoppel.” (Appellants’ Opening Br. at 23.) At different stages of these proceedings, Defendants seemingly advance two different theories of equitable estoppel. Below, Defendants advanced a theory of integrally-related-claim estoppel, sometimes referred to as the “intertwined claims” theory. (See Appellants’ App. at 84 (arguing that “[bjecause the non-signatories’ claims are identical to Jackie Jacks’ claims and are ‘integrally related’ to the [contract] setting forth the Arbitration Agreement, all Plaintiffs are subject to the Arbitration Agreement.”)). In some jurisdictions, this theory permits a nonsignatory to estop a signatory from eschewing arbitration when the claims are integrally related to a contract that contains an arbitration agreement. See Janvey v. Alguire, 847 F.3d 231, 242 (5th Cir. 2017). Insofar as Defendants continue to press this theory of estoppel on appeal, it “does not govern the present case, where a signatory-defendant seeks to compel arbitration with a nonsignatory-plaintiff.” Id.; see also Carter v. Schuster, 227 P.3d 149, 156 (Okla. 2009) (distinguishing between “estop[ping] a signatory from avoiding arbitration with a nonsignatory where the nonsignatory was seeking to resolve issues in arbitration that were intertwined with the agreement the estopped party had signed,” and estopping a nonsig-natory (emphasis in original)). On appeal, Defendants also argue for the “direct-benefit estoppel doctrine,” which “applies when a nonsignatory know'ingly exploits the agreement containing the arbitration clause.” (Appellants’ Opening Br. at 28-29 (quoting Hellenic Inv. Fund, Inc. v. Det Norske Veritas, 464 F.3d 514," }, { "docid": "1746071", "title": "", "text": "cannot be compelled to arbitrate his claims. V. Plaintiff Christopher Specht The connection between the sixth named Plaintiff, Christopher Specht, and the SmartDownload License Agreement is even more attenuated than the connection between Fagan and the Agreement. Specht never obtained or used Smart-Download. Defendants seek to compel arbitration on the basis that Specht maintained a web site from which others could download files, possibly by using SmartDownload, and therefore, Defendants argue, Specht became a third-party beneficiary of the License Agreement. The haziness of Specht’s connection to SmartDownload might later prove fatal to his claims in this case; it certainly dooms Defendants’ efforts to compel him to arbitrate those claims. California courts will compel arbitration of the claims of a non-signatory to an arbitration agreement only in certain narrowly-defined circumstances: The California cases binding nonsignato-ries to arbitrate their claims fall into two categories. In some cases, a nonsigna-tory was required to arbitrate a claim because a benefit was conferred on the nonsignatory as a result of the contract, making the nonsignatory a third party beneficiary of the arbitration agreement. In other cases, the nonsignatory was bound to arbitrate the dispute because a preexisting relationship existed between the nonsignatory and one of the parties to the arbitration agreement, making it equitable to compel the nonsignatory to also be bound to arbitrate his or her claim. County of Contra Costa v. Kaiser Foundation Health Plan, Inc., 47 Cal.App.4th 237, 242, 54 Cal.Rptr.2d 628 (Cal.Ct.App.1996). See also NORCAL Mutual Ins. Co. v. Newton, 84 Cal.App.4th 64, 76, 100 Cal. Rptr.2d 683 (Cal.Ct.App.2000) (In the absence of “an agency or similar relationship between the nonsignatory and one of the parties to an arbitration agreement ... courts have refused to hold nonsignatories to arbitration agreements.”); cf. American Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d Cir.1999) (“A party is estopped from denying its obligation to arbitrate when it receives a ‘direct benefit’ from a contract containing an arbitration clause.”). The record is devoid of evidence that Specht has any preexisting relationship with Netscape, America Online, or the other Plaintiffs; certainly there, is" } ]

[ { "docid": "23233298", "title": "", "text": "1057, 1062 (9th Cir.2000) (Judgment and Conviction should only reflect a violation of 8 U.S.C. § 1326(a)). II. PRIOR AGGRAVATED FELONY A. Waiver Echavarria argues for the first time on appeal that the sentence imposed for his Nevada state theft offense cannot constitute an aggravated felony for purposes of enhancing his present sentence under 8 U.S.C. § 1326(b)(2), because that sentence was suspended. Generally, we do not consider issues raised for the first time on appeal. Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985). There are, however, four • exceptions to this rule, where: (1) there are exceptional circumstances why the issue was not raised in the trial court; (2) new issues have become relevant while the appeal was pending because of change in the law; (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court; or (4) plain error has occurred and injustice might otherwise result. United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994). Conceding that he failed to raise this issue before the district court, Echavarria argues that the third exception applies because the district court erred in interpreting the words used in the sentencing guidelines and statutes. We agree that this exception applies. Because “[a] district court’s construction and interpretation of the Sentencing Guidelines are legal determinations,” United States v. MacDonald, 992 F-2d 967, 970 (9th Cir.1993), we will review Echavarria’s claim of sentencing error, notwithstanding his earlier failure to raise it. B. Aggravated Felony Echavarria claims that because the 1996 amendments to the United States Code (“U.S.C.”), codified at Omnibus Consolidated Appropriations Act of 1997, Pub.L. 104-208, Div. C, § 321(a), 110 Stat. 3009-628, 1996 HR 3610 (September 30, 1996), omitted language referring to suspension of imprisonment, in 8 U.S.C. § 1101(a)(43), the Sentencing Guidelines’ exclusive reference to 1101(a)(43) for the definition of “aggravated felony” now means that the government must prove that the defendant actually served a sentence of imprisonment of at least one year. See Note 1 of the Application" } ]

[ { "docid": "22289991", "title": "", "text": "575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the correctness of Gonzalez’s sentence turns on the following issue: does the generic definition of statutory rape contain an age difference element? The majority invokes plain error review to avoid answering this key question, even though the question is a pure question of law. If the generic definition includes an age difference element, then Gonzalez’s state conviction cannot constitute statutory rape according to the categorical approach, because, as the majority concedes, see Maj. Op. at 425-26, the Arizona statute under which he was convicted, Ariz.Rev.Stat. § 13-1405, does not include an age difference element. When we analyze the statute under the Taylor categorical analysis, the underlying facts do not matter. The majority’s application of plain error review is contrary to our well-established rule that a pure question of law, even if unpreserved, is reviewed de novo absent prejudice to the opposing party. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.2009) (holding that “whether California’s definition of ‘attempt’ is broader than the common law definition, such that attempted robbery is not a ‘crime of violence’ ” is a purely legal question to which plain error review does not apply); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.2003) (declining to apply plain error review to the purely legal question of whether a conviction constitutes an “aggravated felony” under the categorical approach); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001) (declining to apply plain error review where the defendant “argue[d] for the first time on appeal that the sentence imposed for his Nevada state theft offense [could not] constitute an aggravated felony for purposes of enhancing his [ ] sentence .... ”). The majority contends that plain error review applies because Gonzalez’s failure to object caused the government prejudice by depriving it of the opportunity to submit “further documentation from the state court proceeding that could clearly be considered in any modified categorical analysis.” Maj. Op. at 428. Again, the issue under the categorical approach is whether generic statutory" }, { "docid": "23110725", "title": "", "text": "the conduct, the sophistication of the Defendant, the callousness of the Defendant and all of the harm and trauma that has befallen the [victims of the crimes].” II. Discussion A district court’s sentencing decisions are generally reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Only a procedurally erroneous or substantively unreasonable sentence should be set aside. See Gall, 552 U.S. at 46, 128 S.Ct. 586; Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Carty, 520 F.3d at 993. Procedural error includes failing to calculate or calculating incorrectly the proper Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, choosing a sentence based on clearly erroneous facts, or failing to explain a selected sentence sufficiently to permit appellate review, including any deviation from the Guidelines range. See Carty, 520 F.3d at 993. Where a procedural sentencing error is raised for the first time on appeal, it is reviewed for plain error. United States v. Burgum, 633 F.3d 810, 812 (9th Cir.2011) (citing United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011)). A. Rule 32(h) Notice The Sentencing Guidelines provide that a court may impose a sentence outside the Guidelines range through either a “departure” or a “variance.” We have described the difference between the two: A “departure” is typically a change from the final sentencing range computed by examining the provisions of the Guidelines themselves. It is frequently triggered by a prosecution request to reward cooperation ... or by other factors that take the case “outside the heartland” contemplated by the Sentencing Commission when it drafted the Guidelines for a typical offense. A “variance,” by contrast, occurs when a judge imposes a sentence above or below the otherwise properly calculated final sentencing range based on application of the other statutory factors in 18 U.S.C. § 3553(a). United States v. Cruz-Perez, 567" }, { "docid": "22289990", "title": "", "text": "selects which standard of review to apply. Because this standard of review is no standard at all, I respectfully dissent. If the majority had applied our long-established precedents, it would be required to reverse and remand for resentencing. I. This is a sentencing case. As in all sentencings, the district court was first required to calculate the correct advisory guidelines sentencing range. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). It did not do so. Defendant-appellant Gonzalez-Aparicio (“Gonzalez”) pled guilty to one count of illegal entry under 8 U.S.C. § 1326(b)(2). The sentencing court applied a 16-point “crime of violence” enhancement, U.S.S.G. § 2L1.2(b)(l)(A)(ii), that raised Gonzalez’s total offense level from 6 to 22. At Criminal History Category III, this raised his corresponding Guidelines range from 2-8 months to 51-63 months. The district court imposed a sentence of 51 months. II. Under the pure categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the correctness of Gonzalez’s sentence turns on the following issue: does the generic definition of statutory rape contain an age difference element? The majority invokes plain error review to avoid answering this key question, even though the question is a pure question of law. If the generic definition includes an age difference element, then Gonzalez’s state conviction cannot constitute statutory rape according to the categorical approach, because, as the majority concedes, see Maj. Op. at 425-26, the Arizona statute under which he was convicted, Ariz.Rev.Stat. § 13-1405, does not include an age difference element. When we analyze the statute under the Taylor categorical analysis, the underlying facts do not matter. The majority’s application of plain error review is contrary to our well-established rule that a pure question of law, even if unpreserved, is reviewed de novo absent prejudice to the opposing party. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.2009) (holding that “whether California’s" }, { "docid": "10120092", "title": "", "text": "the orders as consistent. The “personal items” that the district court noted had been “frequently found in air filter boxes” may well have referred to firearms that pose a threat to officers. II. Torres also challenges his sentence on the grounds that the district court incorrectly enhanced his offense level under section 2K2.1 of the U.S. Sentencing Guidelines, in light of the Supreme Court’s June 2015 decision in Johnson v. United States, 135 S.Ct. at 2557-60. Johnson held that the ACCA’s catch-all “residual clause,” see 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague because it failed to specify the crimes that fell within its scope sufficiently clearly to satisfy the dictates of due process. Johnson, 135 S.Ct. at 2557-58, 2563. Torres argues that section 2K2.1(a)(2)’s identically worded residual clause is likewise unconstitutional. Because Torres did not object at sentencing, we will generally reverse only if we find plain error in his sentence. United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir. 2010); Fed. R. Crim. P. 52(b). “However, we are not limited to this standard of review when,” as here, “we are presented with a question that ‘is purely one of lav/ and where ‘the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.’ ” Evans-Martinez, 611 F.3d at 642 (quoting United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)). A. After the district court denied his motion to suppress, Torres pleaded guilty to one count of being a felon in possession of a firearm pursuant to a conditional plea agreement. In his plea agreement, Torres stipulated to a base offense level of 24 under section 2K2.1(a)(2) of the Guidelines, which provides for an enhancement in unlawful firearms cases “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of ... a crime of violence.” See U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (U.S. Sentencing Comm’n 2015). The Guidelines define a “crime of violence” in section 2K2.1’s career offender provision equivalently to the phrase “violent felony” in the ACCA’s residual" }, { "docid": "23110726", "title": "", "text": "for the first time on appeal, it is reviewed for plain error. United States v. Burgum, 633 F.3d 810, 812 (9th Cir.2011) (citing United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011)). A. Rule 32(h) Notice The Sentencing Guidelines provide that a court may impose a sentence outside the Guidelines range through either a “departure” or a “variance.” We have described the difference between the two: A “departure” is typically a change from the final sentencing range computed by examining the provisions of the Guidelines themselves. It is frequently triggered by a prosecution request to reward cooperation ... or by other factors that take the case “outside the heartland” contemplated by the Sentencing Commission when it drafted the Guidelines for a typical offense. A “variance,” by contrast, occurs when a judge imposes a sentence above or below the otherwise properly calculated final sentencing range based on application of the other statutory factors in 18 U.S.C. § 3553(a). United States v. Cruz-Perez, 567 F.3d 1142,1146 (9th Cir.2009) (internal citations omitted). Federal Rule of Criminal Procedure 32(h) requires a district court to provide notice of a potential “departure” from the Sentencing Guidelines range. See United States v. Evans-Martinez, 530 F.3d 1164, 1167-68 (9th Cir.2008) (holding that Rule 32(h) survives United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). This notice requirement does not apply, however, to a “variance” under § 3553(a). Irizarry v. United States, 553 U.S. 708, 714, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). Promulgated in response to Bums v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), Rule 32(h) was designed to ensure “full adversary testing of the issues relevant to a Guidelines sentence.” Burns, 501 U.S. at 135, 111 S.Ct. 2182. Irizarry explained that Rule 32(h) was premised on protecting a defendant’s expectation that his sentence would be within the applicable Guidelines range. Irizarry, 553 U.S. at 713, 128 S.Ct. 2198. Booker eliminated this expectation by making the Guidelines advisory only. Id. at 713-14, 128 S.Ct." }, { "docid": "22289964", "title": "", "text": "States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). A district court’s interpretation and application of the Guidelines is usually reviewed de novo. See, e.g., Aguila-Montes, 655 F.3d at 919-20; United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006) (en banc). However, it is uncontested that Gonzalez-Aparicio (who was represented by counsel) never objected to or otherwise called into question the characterization of his prior Arizona conviction as a “crime of violence.” He failed to do so either in writing or even at the sentencing hearing itself. Understandably, the government argues that this Court must apply the well-established plain error standard of review with respect to alleged sentencing errors not raised below. See, e.g., United States v. Charles, 581 F.3d 927, 932-33 (9th Cir.2009). Gonzalez-Aparicio asserts that the Court should not do so because we are purportedly confronted with a pure question of law and the opposing party would suffer no prejudice as a result of the failure to raise the issue below (although he further contends that he satisfies the plain error standard in any case). We have indicated in prior sentencing cases that we are not limited to this standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1547, 176 L.Ed.2d 139 (2010); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001). In other words, we possess the discretion to refrain from applying the default plain error standard of review in certain circumstances. United States v. Burgum, 633 F.3d 810, 812 n. 2 (9th Cir.2011) (“To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance.” (citing Evans-Martinez, 611 F.3d at 642; Echavarria-Escobar, 270 F.3d at 1267-68).) We find that it is not appropriate to exer cise this discretion in light of" }, { "docid": "22289993", "title": "", "text": "rape contains an age difference element. If the answer is yes, then Gonzalez’s conviction does not qualify as a matter of law under the categorical test. “Further documentation of the state court proceeding” could not affect the analysis. Gonzalez’s failure to object did not prejudice the government with regards to this question. Most perplexingly, however, the majority also justifies its application of plain error review as an exercise of its purported “discretion” to select the appropriate standard of review. Maj. Op. at 426. The idea that we have discretion to choose between standards of review is antithetical to the very concept of a standard of review. If we can pick whatever standard suits us, free from the direction of binding principles, then there is no standard at all. Our cases that apply the “pure question of law” exception to plain error review do not engage in any such discretionary selection. Rather, the cases limit themselves to asking whether the relevant issue is purely legal and whether the opposing party suffers no prejudice. If the answer to both questions is yes, our cases invariably have applied de novo review. See Evans-Martinez, 611 F.3d at 642; Saavedra-Velazquez, 578 F.3d at 1106; Huerta-Guevara, 321 F.3d at 886; Echavarria-Escobar, 270 F.3d at 1267-68. Rather than recognizing these cases as binding, the majority comes up with a newly-minted rule under which it grants itself discretion over which standard of review to apply. It does this by seizing upon the slender reed of a one-sentence footnote that contains no analysis of the “pure question of law” exception to plain error review. See United States v. Burgum, 633 F.3d 810, 812 n. 2 (9th Cir.2011) (“To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance.”). As is plainly clear from its language, the footnote does not actually state that appellate courts have discretion to choose between standards of review. And the footnote certainly does not overrule our earlier decisions by granting courts discretion to apply anything other than de novo review where an unpreserved question is" }, { "docid": "22289965", "title": "", "text": "error standard in any case). We have indicated in prior sentencing cases that we are not limited to this standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1547, 176 L.Ed.2d 139 (2010); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001). In other words, we possess the discretion to refrain from applying the default plain error standard of review in certain circumstances. United States v. Burgum, 633 F.3d 810, 812 n. 2 (9th Cir.2011) (“To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance.” (citing Evans-Martinez, 611 F.3d at 642; Echavarria-Escobar, 270 F.3d at 1267-68).) We find that it is not appropriate to exer cise this discretion in light of the specific circumstances of the current appeal. As we explain in further detail in the next section, there was at the time of sentencing and still exists today confusion, tension, and possibly even conflict in our own case law as to whether the generic federal definition of “statutory rape” includes a 4-year age difference element. The panels in the decisions cited above were not confronted with such a situation (and two of the panels ultimately held that there were no errors of law in light of prior precedent). See Evans-Martinez, 611 F.3d at 638-42(determining sua sponte that the district court committed procedural error by using mandatory minimum sentence for one count as Guideline sentence for all counts); Saavedra-Velazquez, 578 F.3d at 1106-10 (following Ninth Circuit precedent to conclude that California’s definition of attempt is not broader than definition of attempt at common law and that accordingly attempted robbery is “crime of violence”); Echavarria-Escobar, 270 F.3d at 1267-71 (following every other circuit court to have considered issue to conclude that suspended sentence may constitute aggravated felony" }, { "docid": "22289992", "title": "", "text": "definition of ‘attempt’ is broader than the common law definition, such that attempted robbery is not a ‘crime of violence’ ” is a purely legal question to which plain error review does not apply); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.2003) (declining to apply plain error review to the purely legal question of whether a conviction constitutes an “aggravated felony” under the categorical approach); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001) (declining to apply plain error review where the defendant “argue[d] for the first time on appeal that the sentence imposed for his Nevada state theft offense [could not] constitute an aggravated felony for purposes of enhancing his [ ] sentence .... ”). The majority contends that plain error review applies because Gonzalez’s failure to object caused the government prejudice by depriving it of the opportunity to submit “further documentation from the state court proceeding that could clearly be considered in any modified categorical analysis.” Maj. Op. at 428. Again, the issue under the categorical approach is whether generic statutory rape contains an age difference element. If the answer is yes, then Gonzalez’s conviction does not qualify as a matter of law under the categorical test. “Further documentation of the state court proceeding” could not affect the analysis. Gonzalez’s failure to object did not prejudice the government with regards to this question. Most perplexingly, however, the majority also justifies its application of plain error review as an exercise of its purported “discretion” to select the appropriate standard of review. Maj. Op. at 426. The idea that we have discretion to choose between standards of review is antithetical to the very concept of a standard of review. If we can pick whatever standard suits us, free from the direction of binding principles, then there is no standard at all. Our cases that apply the “pure question of law” exception to plain error review do not engage in any such discretionary selection. Rather, the cases limit themselves to asking whether the relevant issue is purely legal and whether the opposing party suffers no prejudice. If the answer" }, { "docid": "16413407", "title": "", "text": "to pay the $258,280 in restitution the court intended to order. In addition to ordering the restitution payment, the court ultimately imposed a 180-month term of imprisonment. II. The substantive reasonableness of a sentence is reviewed for abuse of discretion. See United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). Procedural sentencing errors raised for the first time on appeal are generally reviewed for plain error. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011). III. Burgum first argues that instead of “begin[ning] by determining the applicable Guidelines range” as required by United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc), the district court im properly based its sentencing analysis on the statutory maximum. Burgum did not object to this alleged error below, so our review is for plain error, which we conclude did not occur. The court properly calculated the guidelines range as the starting point, then considered the statutory maximum and applied mitigating factors. Had the district court used the statutory maximum rather than the guidelines range as the baseline for sentencing, it would have been reversible error. See id. at 993. The district court mentioned “working from the statutory maximum and building downward,” but the record clarifies that the court used the guidelines as a “starting point” and recognized its obligation to consider the 18 U.S.C. § 3553(a) sentencing factors. Specifically, the court said it would “in normal circumstances be looking, believe it or not, at the statutory maximum” and would then be “working down.” But before discussing the statutory maximum, the court made clear that the “starting point of [its] analysis [was] the guideline range.” The court concluded that the aggravating factors warranted an upward adjustment all the way to the statutory maximum, and then applied mitigating factors to reduce that hefty sentence. Thus the court properly used the guidelines as the “initial benchmark,” id. at 991 (citation and internal quotation marks omitted), and its repeated references to the guidelines “demonstrate that the court ‘remain[ed] cognizant of [them]" }, { "docid": "20256798", "title": "", "text": "commits such violation.” Joseph does not challenge the second provision and we need not address it here. . The PSR also noted that, pursuant to the second provision in § 1791(c), any sentence imposed must run \"consecutive to any sentence being served at the time the defendant committed the instance offense.\" . Pursuant to the second provision in § 1791(c), which is not at issue here, the term of imprisonment was also imposed to run consecutively to the state sex abuse sentence for which Joseph was incarcerated at the time he committed the § 1791 violations. . We note that we \"are not limited to [a plain error] standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party” that resulted from a defendant's failure to object. Gonzalez-Aparicio, 663 F.3d at 426; United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010) (declining to apply plain error review to the question of whether the district court correctly applied the Sentencing Guidelines when the defendant failed to object at sentencing); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.2009) (declining to apply plain error review when the defendant challenged a sentencing enhancement for the first time on appeal based on the argument that a prior conviction was not, as a matter of law, an aggravated felony); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001). Because the question before us is one of law and the Government suffers no harm from Joseph's failure to object in the district court, we could decline to apply plain error review. However, because we hold that reversal is warranted under the more deferential plain error standard of review, we need not address how our analysis would proceed under a different standard. . (a) Offense. — Whoever— (1) in violation of a statute or a rule or order issued under a statute, provides to an inmate of a prison a prohibited object, or attempts to do so; or (2) being an inmate of a prison, makes, possesses, or obtains, or attempts to make or" }, { "docid": "22289994", "title": "", "text": "to both questions is yes, our cases invariably have applied de novo review. See Evans-Martinez, 611 F.3d at 642; Saavedra-Velazquez, 578 F.3d at 1106; Huerta-Guevara, 321 F.3d at 886; Echavarria-Escobar, 270 F.3d at 1267-68. Rather than recognizing these cases as binding, the majority comes up with a newly-minted rule under which it grants itself discretion over which standard of review to apply. It does this by seizing upon the slender reed of a one-sentence footnote that contains no analysis of the “pure question of law” exception to plain error review. See United States v. Burgum, 633 F.3d 810, 812 n. 2 (9th Cir.2011) (“To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance.”). As is plainly clear from its language, the footnote does not actually state that appellate courts have discretion to choose between standards of review. And the footnote certainly does not overrule our earlier decisions by granting courts discretion to apply anything other than de novo review where an unpreserved question is purely legal and there is no prejudice to the opposing party. The majority overrides this clear line of precedent by simple fiat, “findfing] that it is not appropriate to exercise this discretion in light of the specific circumstances of the current appeal.” Maj. Op. at 426-27. In announcing its newly-minted rule giving itself the discretionary option of which standard of review to apply, the majority simply ignores our long-established case law that pure questions of law are an exception to plain error review. Because our case law so dictates, I would review de novo the purely legal question of whether the statute of conviction lacks an element of the generic offense in this case. III. Turning to that question of law, although we have never squarely decided whether generic statutory rape includes an age difference element, we have come close. Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), held that “sexual abuse of a minor” requires an age difference element. Id. at 1152(“[T]he generic offense of ‘sexual abuse of a minor’ requires four" }, { "docid": "23415997", "title": "", "text": "application of the sentencing guidelines”). We review de novo “a district court’s determination that a prior conviction qualifies as a ‘crime of violence’ under the Guidelines.... ” United States v. Rodriguez-Guzman, 506 F.3d 738, 740-41 (9th Cir.2007) (citation omitted). II. The first question before us is whether completed robbery under Cal.Penal Code § 211 is a “crime of violence” for purposes of the Sentencing Guidelines. SaavedraVelazquez has conceded, and we agree, that intervening case law since the filing of his appeal has settled this question definitively in the affirmative. See United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir.2008). III. We next consider whether California’s definition of “attempt” is broader than the common law definition, such that attempted robbery is not a “crime of violence.” A. Saavedra-Velazquez makes this argument for the first time on appeal. We generally review arguments not raised before the district court for plain error. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). However, we are not limited to this standard of review when we are presented with a question that “is purely one of law” and where “the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court....” United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir. 2001). In Echavarria-Escobar, an alien convicted of illegal reentry under 8 U.S.C. § 1326 challenged his sentence enhancement for the first time on appeal on the ground that his prior conviction was not, as a matter of law, an aggravated felony. Because the question presented was purely legal, we did not restrict ourselves to plain error review. Here, too, the question whether an “attempt” under California law is broader than an “attempt” at common law is a pure question of law, and the government, which has fully briefed the issue, suffers no prejudice. We therefore will not apply plain error review. B. The Sentencing Guidelines provide for a 16-level upward adjustment “[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for" }, { "docid": "16413419", "title": "", "text": "court did not improperly base its sentencing analysis on the statutory maximum, and that the sentence imposed was not substantively unreasonable. Nonetheless, because the district court’s treatment of Burgum’s inability to pay was plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing, we vacate and remand for resentencing without consideration of Burgum’s inability to pay. VACATED AND REMANDED. . Although the district court arrived at a different guidelines range than the final PSR, the parties do not dispute the accuracy of the calculation. Accordingly, we proceed on the assumption that it is correct. . To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance. See Evans-Martinez, 611 F.3d at 642; United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001) (explaining that we have discretion to consider issues raised for the first time on appeal under limited circumstances). . In holding that the district court offered a reasonable explanation for deviating from the recommended sentence, we do not consider its reliance on Burgum’s inability to pay restitution, which was improper for the reasons explained in Part V, below. O’SCANNLAIN, Circuit Judge, dissenting: Joseph Case Burgum pled guilty to two counts of bank robbery. As noted, in both robberies Burgum approached the bank manager and identified himself as an FBI agent. Burgum handcuffed both managers to a black box which Burgum claimed was a bomb. Burgum then displayed a remote control and said,something to the effect of: “I’ve activated the bomb. This device is a remote control. If I press this button, it will blow you and half this building up.” At sentencing, the district court calculated a Guidelines range of 108-135 months, but, ultimately, departed upward to a sentence of 180 months. During a lengthy sentencing hearing, the district court not ed that one aggravating factor, among many, was that Burgum was unlikely to repay the money that he stole from the banks. The majority concludes that such mention of Burgum’s unlikeliness to pay restitution mandates that we vacate Bur-gum’s sentence and remand" }, { "docid": "16413406", "title": "", "text": "higher guidelines range calculation and recommended a sentence of 188 months, at the low end of the higher range. The final PSR also recommended ordering $258,280 in restitution. Recognizing that plea negotiations had proceeded with the understanding that Burgum would be sentenced according to the 108-135 month guidelines range originally calculated, the government recommended a sentence at the low end of that lower guidelines range in its sentencing memorandum. Burgum agreed with the government’s recommendation. At sentencing, the district court calculated a guidelines range of 108-135 months, using a different calculation method than that used in any version of the PSR. The court then listed various mitigating factors it found persuasive but also emphasized several “very troubling, aggravating factors.” In describing .aggravating factors, the district court focused on “the nature of these bank robberies,” including the use of a hoax bomb, the impersonation of an FBI agent and the “infliction of emotional distress on the bank manager and the tellers.” The court also mentioned “[o]ne additional aggravating factor”: Burgum was very unlikely to be able to pay the $258,280 in restitution the court intended to order. In addition to ordering the restitution payment, the court ultimately imposed a 180-month term of imprisonment. II. The substantive reasonableness of a sentence is reviewed for abuse of discretion. See United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). Procedural sentencing errors raised for the first time on appeal are generally reviewed for plain error. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 956, 178 L.Ed.2d 788 (2011). III. Burgum first argues that instead of “begin[ning] by determining the applicable Guidelines range” as required by United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc), the district court im properly based its sentencing analysis on the statutory maximum. Burgum did not object to this alleged error below, so our review is for plain error, which we conclude did not occur. The court properly calculated the guidelines range as the starting point, then considered the statutory maximum and applied mitigating factors. Had" }, { "docid": "20256797", "title": "", "text": "1063 (quoting Castillo-Casiano, 198 F.3d at 792). Therefore, we exercise our discretion to notice the plain error that Joseph failed to object to in the district court. See Cotton, 535 U.S. at 631, 122 S.Ct. 1781; Johnson, 520 U.S. at 467, 117 S.Ct. 1544; Ameline, 409 F.3d at 1078. IV. Accordingly, we hold that the district court committed plain error by interpreting 18 U.S.C. § 1791(c) to require consecutive sentencing for controlled substances offenses that arose out of separate items of drugs. We vacate Joseph’s sentence and remand for resentencing. VACATED AND REMANDED. . Section § 1791(c) contains two \"provisions.” The first provides: “Any punishment imposed under subsection (b) for a violation of this section involving a controlled substance shall be consecutive to any other sentence imposed by any court for an offense involving such a controlled substance.” The second provides: \"Any punishment imposed under subsection (b) for a violation of this section by an inmate of a prison shall be consecutive to the sentence being served by such inmate at the time the inmate commits such violation.” Joseph does not challenge the second provision and we need not address it here. . The PSR also noted that, pursuant to the second provision in § 1791(c), any sentence imposed must run \"consecutive to any sentence being served at the time the defendant committed the instance offense.\" . Pursuant to the second provision in § 1791(c), which is not at issue here, the term of imprisonment was also imposed to run consecutively to the state sex abuse sentence for which Joseph was incarcerated at the time he committed the § 1791 violations. . We note that we \"are not limited to [a plain error] standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party” that resulted from a defendant's failure to object. Gonzalez-Aparicio, 663 F.3d at 426; United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010) (declining to apply plain error review to the question of whether the district court correctly applied the Sentencing Guidelines when the defendant failed" }, { "docid": "23203101", "title": "", "text": "applicable to two counts is 15-18 months’ imprisonment. If one of the counts has a mandatory minimum sentence of 24 months’ imprisonment, the guideline sentence would be 24 months’ imprisonment, pursuant to section 5Gl.l(b). But if the other count has a mandatory maximum of 12 months’ imprisonment, the guideline sentence would be 12 months’ imprisonment, pursuant to section 5Gl.l(a). Two different guideline sentences would apply to each count: 24 months’ and 12 months’ imprisonment. This is an absurd result. To avoid this result, it is necessary to interpret “guideline sentence” as the guideline sentence applicable to only the count that carries the mandatory maximum or minimum sentence. Thus, in the preceding example, the count with a mandatory maximum of 12 months’ imprisonment would have a guideline sentence of 12 months’ imprisonment, and the count with a mandatory minimum of 24 months’ imprisonment would have a guideline sentence of 24 months’ imprisonment. Ressam was silent as to the standard of review we must apply once we fulfill our sua sponte duty to review the sentence imposed by the district court for procedural error. Where, as here, a party fails to raise an issue before the district court, plain error review generally applies. See United States v. Waknine, 543 F.3d 546, 551 (9th Cir.2008). “However, we are not limited to this standard of review when we are presented with a question that ‘is purely one of law’ and where ‘the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court....’” United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001)). Here, we are presented with a question that “is purely one of law”-the interpretation of the Guidelines. Echavarria-Escobar, 270 F.3d at 1268. Further, the government is not prejudiced by our requirement that the district court correctly calculate the Guidelines sentencing range before it imposes a sentence, even though Evans-Martinez did not raise the issue below. Therefore, we do not apply plain error review. Because the district court committed procedural error" }, { "docid": "22289966", "title": "", "text": "the specific circumstances of the current appeal. As we explain in further detail in the next section, there was at the time of sentencing and still exists today confusion, tension, and possibly even conflict in our own case law as to whether the generic federal definition of “statutory rape” includes a 4-year age difference element. The panels in the decisions cited above were not confronted with such a situation (and two of the panels ultimately held that there were no errors of law in light of prior precedent). See Evans-Martinez, 611 F.3d at 638-42(determining sua sponte that the district court committed procedural error by using mandatory minimum sentence for one count as Guideline sentence for all counts); Saavedra-Velazquez, 578 F.3d at 1106-10 (following Ninth Circuit precedent to conclude that California’s definition of attempt is not broader than definition of attempt at common law and that accordingly attempted robbery is “crime of violence”); Echavarria-Escobar, 270 F.3d at 1267-71 (following every other circuit court to have considered issue to conclude that suspended sentence may constitute aggravated felony for sentencing enhancement purposes). In contrast, a reasoned decision from the District Court, made after the parties have presented their respective positions, would assist us in deciding the difficult legal question of whether there is an age difference element. The failure to object, however, means that we have been denied such valuable assistance. We further note that this Court relatively recently applied the plain error standard to the defendant’s claim, asserted for the first time on appeal, that he was not a career offender because his prior conviction did not categorically constitute a controlled substance offense. Charles, 581 F.3d at 932-36. Pursuant to the modified categorical approach, this Court must also consider, among other things, acceptable documentation regarding GonzalezrAparicio’s prior Arizona conviction. We must go beyond an abstract legal discussion of statutory terms and criminal elements. Accordingly, this appeal implicates more than merely a pure question of law. As a practical matter, the defense’s own conduct before the District Court provides even further support for applying the well-established plain error standard of review. In addition" }, { "docid": "23203102", "title": "", "text": "by the district court for procedural error. Where, as here, a party fails to raise an issue before the district court, plain error review generally applies. See United States v. Waknine, 543 F.3d 546, 551 (9th Cir.2008). “However, we are not limited to this standard of review when we are presented with a question that ‘is purely one of law’ and where ‘the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court....’” United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001)). Here, we are presented with a question that “is purely one of law”-the interpretation of the Guidelines. Echavarria-Escobar, 270 F.3d at 1268. Further, the government is not prejudiced by our requirement that the district court correctly calculate the Guidelines sentencing range before it imposes a sentence, even though Evans-Martinez did not raise the issue below. Therefore, we do not apply plain error review. Because the district court committed procedural error when it used 120 months’ imprisonment as the Guidelines sentence for all three counts, we vacate and remand the sentences for sexual abuse of a child (Count 1) and witness tampering (Count 3) to allow the district court to impose sentences based on the correct Guidelines sentencing range of 30-37 months’ imprisonment. 2. Failure to Announce the Extent of the Departure The district court did not err when it granted the government’s motion for a downward departure but failed to announce the extent of that departure and to calculate a new Guidelines sentencing range before it considered the 18 U.S.C. § 3553(a) sentencing factors and imposed an above-Guidelines sentence. A district court may, upon the government’s motion, depart below the statutorily required minimum sentence, 18 U.S.C. § 3553(e), and below the Guidelines sentencing range, U.S.S.G. § 5K1.1, when a defendant renders substantial assistance to authorities. A district court’s decision to grant such a motion does not bind the court either to begin at the sentence recommended by the government or to stay at the level" }, { "docid": "16413418", "title": "", "text": "1770 (citation and internal quotation marks omitted). We recognize that the district court, in its sentencing colloquy, strongly emphasized several other aggravating factors, particularly the nature of Burgum’s offense conduct and its likely effect on bank employees. But we have made clear that “class and wealth distinctions ... have no place in criminal sentencing” under these circumstances. United States v. Bragg, 582 F.3d 965, 970 (9th Cir.2009); see also Parks, 89 F.3d at 572 (holding that imposition of a longer term of imprisonment due to poverty is unconstitutional). By invoking Burgum’s inability to pay as an “aggravating factor” and emphasizing that its sentencing decision was based in part on aggravating factors, the court improperly injected socioeconomic status into the sentencing calculus. Because we cannot be sure the district court did not weigh this factor in the balance, its inclusion compromised the fairness and integrity of the sentencing proceeding. We therefore conclude that the district court’s treatment of Burgum’s inability to pay restitution as an aggravating factor constituted plain error. VI. We hold that the district court did not improperly base its sentencing analysis on the statutory maximum, and that the sentence imposed was not substantively unreasonable. Nonetheless, because the district court’s treatment of Burgum’s inability to pay was plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing, we vacate and remand for resentencing without consideration of Burgum’s inability to pay. VACATED AND REMANDED. . Although the district court arrived at a different guidelines range than the final PSR, the parties do not dispute the accuracy of the calculation. Accordingly, we proceed on the assumption that it is correct. . To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance. See Evans-Martinez, 611 F.3d at 642; United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001) (explaining that we have discretion to consider issues raised for the first time on appeal under limited circumstances). . In holding that the district court offered a reasonable explanation for deviating from the recommended sentence, we do not" } ]

[ { "docid": "2173535", "title": "", "text": "HAND, District Judge (after stating the facts as above). The question in this case turns, I think, entirely upon a question of fact, namely, whether the broker intended, when he purchased the shares of stock in question, to apportion them as the property of those persons to whom he was under obligation to deliver stock of a similar kind in the place of the stock which lie liad formerly converted. We have it on the highest authority that there is no earmark to shares of this sort. Richardson v. Shaw, 209 U. S. 365 at page 379, 28 Sup. Ct. 512, 52 L. Ed. 835. There are two possible cases: First, that there are no customers entitled to stock of a similar character, except the claimant, and that his claim is exactly covered by the number of shares found in the receiver’s possession; second, that the claimant or claimants would require for their satisfaction more shares than those on hand. I presuppose that there cannot be found any shares actually purchased with the customer’s money, and that either'the money was not so used at all, or that, having been once used, the stock so- bought by the broker for the customer he has sold afterwards. The question is whether we should not assume that' the broker, in taking from other funds enough to buy an equal number of shares of stock, did not intend pro tanto to attribute that much of his own funds to making good his default. By way of analogy, suppose that an agent depletes a bank deposit made in his name as agent. Subsequent deposits in that fund would go to make good the former conversion, and the general creditors could not complain. Baker v. Bank, 100 N. Y. 31, 2 N. E. 452, 53 Am. Rep. 150. He may make good his default out of his own property, and all that is necessary is some unequivocal appropriation of the property to that effect. Of course, in that case the appropriation was unambiguous, and here we must adopt a presumption; but the question is whether such" } ]

[ { "docid": "11725755", "title": "", "text": "had given unqualified consents. Hunsberger’s Claim. Hunsberger claims part of the purchase price of 100 shares of General Motors stock; i. e., the last installment paid four days before bankruptcy, which he traces into one of the bank deposits of the bankrupt. He must show that the stock, though bought for him on January 3, was never received. In re A. O. Brown, Ex parte Horrocks, supra; In re A. O. Brown, Ex parte Smart, supra. On January 4, the brokers received 100 shares of General Motors stock, which they delivered out on January 5. We do not, and I suppose cannot, know whether this was received upon a contract of purchase made in Hunsberger’s behalf, but clearly that is possible, and under In re A. O. Brown, Ex parte Horrocks, supra, he must show that his shares were never received. As He fails to do so, he must fail to recover, since that may have been his stock and may have been converted. The doctrine becomes, however, much complicated after Gorman v. Littlefield, 229 U. S. 19, 33 Sup. Ct. 690, 57 L. Ed. 1047, and Duel v. Hollins, 241 U. S. 523, 36 Sup. Ct. 615, 60 L. Ed. 1143. Those cases hold that all customers are co-owners in the shares actually on hand of the stock in question, and that no certificate retains any identity of ownership. Hence the brokers who received the requisite number of shares for a given customer do not hold those shares for him alone, unless they have on hand enough shares of that stock to answer the demands of all others. They have merely added to a bin which does not contain enough for all, and in which all share pro rata. If such be the notion, then the order of a customer has not been filled until the brokers have on hand in some given day enough shares to answer all claims. As soon as they once do that, any subsequent sale is then a conversion, which relegates the customer to following the proceeds under In re A. O. Brown, Ex" }, { "docid": "15215891", "title": "", "text": "but with a dismissal of the petition to revise, it suffices as a final and appealable decree. Motion to dismiss the appeal is denied. 3. The identical bonds delivered to the bankrupt are not on hand; an equivalent amount of exactly like character is now in the possession of the trustee, and they axe, moreover, directly traceable as the proceeds of those originally delivered. It is conceded that if stock certificates instead of bonds were involved, appellant, as against the trustee representing general creditors, would be entitled to them, whether on the ground of practical identification of fungible articles (Duel v. Hollins, 241 U. S. 523, 36 S. Ct. 615, 60 L. Ed. 1143), or on the analogy of following trust funds. On either basis, however, there would be an obligation of contribution in favor of such owners if any, of the securities sold out by Post & Elagg after bankruptcy as are in appellant’s class in relation to the bankrupt. See Oppenheimer Stockbrokerage Bankruptcies, 37 Harvard Law Review, 860. The referee, however, held, and appellees contend, that bonds are unlike stock certificates; that the former are or are analogous to chattels, like automobiles of a given make, model, and year, each with its own identity and individuality, although for most purposes indistinguishable from one another, while the latter are but tokens of an incorporeal undivided interest in a corporation; that therefore the principles of identification, if not of tracing, are inapplicable; and that as the originally deposited bonds are not on hand, there can be no recovery. The right to trace, and, even without tracing, to obtain like stock certificates on hand is not, however, due to their character as tokens of a chose in action, but to their interchangeability — their fungible nature. In truth, the serial number of a stock certificate identifies it exactly as does the serial number of a bond; in the one as in the other this identification may for some purposes be vital. Oppenheimer, supra, page. 868. But in so far as such certificates are agreed or are deemed in law to be" }, { "docid": "6980157", "title": "", "text": "stock, but the court thought that the mere accident that Rolph’s 300 shares survived, liquidation did not give him equities superior to others whose stock had been unlawfully hypothecated with Winthrop & Co. by Wilson & Co. and sold by Winthrop & Co. to discharge their debt against Wilson & Co. In the course of the opinion of the District-Judge, referring to the decision as to Pippey’s stock in the McIntyre Case, it was said: “It is true that the court held that the admiralty principle of general average was not applicable, and that the pledge should not bo treated as a common adventure; but it did not disturb the proposition that it is the character of the equity\" which determines how any particular claim shall be classified. The case Is quite different from one where a pledgee rightly sells collateral prior to a bankruptcy. In the absence of fraud or collusive arrangements, the result of such a sale is one of the hazards which may befall persons in a business of this character. If, however, it be held that, after a petition in bankruptcy lias been filed, the pledgee, by selecting for sale some stocks and not others, can thereby save some stocks intact for the owners without the ¡burden of contribution, and not others, it can readily be seen that the door will be opened for the most indefensible kind of favoritism, and possibly for corrupt bargains between the owners of securities and the pledgee. Indeed, a pledgee of his own motion, without any agreement with owners of securities, could easily safeguard his friends, to the detriment of others who were strangers to him. I am fully satisfied, therefore, that liolph is in the same position as other class A claimants.” We think the conclusion above reached was correct, and that the adoption of the contrary theory would lead many times to unfair practices and work gross injustice. The courts in the United States and England have long acted upon the principle that between different creditors equality is equity. Equality, according to Bracton, constitutes equity itself. All debts" }, { "docid": "23705211", "title": "", "text": "rata with others similarly situated in said surplus of money and securities. The Circuit Court of Appeals pointed out that the conduct of the stockbrokers in pledging Pippey’s stock with the Metropolitan Trust Company amounted to larceny. The result was that Pippey had the highest kind of equity, and the Circuit Court of Appeals held that he was entitled to recover his stock or the proceeds free of any burden to share pro rata with others. Ellen J. Sedgwick and Fred L. Bishop (45). The master awarded to these claimants 60 shares United States Steel preferred (10 to Bishop and 50 to Mrs. Sedgwick), under the same circumstances and principle under which a similar award has been made in this case by common consent to Allie M. Powell. There was no petition to revise and no appeal from the master’s order in this regard. Charlotte B. Miller (47). On April 1, Mrs. Miller, through her son as her agent, bought through McIntyre & Co. 12 shares of United States Steel preferred, which stock was paid for on April 3, 1908. McIntyre & Co. were requested to have these 12 shares of stock transferred to the name of Mrs. Miller and thereupon to send same to her. Between April 7, 1908, and the date of the failure, April 24, 1908, Mrs. Miller’s son called at the Syracuse office of McIntyre & Co. on several occasions and asked for the certificate of stock. The last time he called was on the day before the failure. At the date of the bankruptcy the market value of these 12 shares was $1,197. On May 1, 1907, a demand was made at the office of McIntyre & Co. in New York for the stock, but the stock was never received by Mrs. Miller. This stock was traced by Mrs. Miller into the Metropolitan Trust Company loan, and (without setting forth further details) the master held that Mrs. Miller had successfully traced her stock, and that her claim was $1,197, and that she was entitled to share pro rata. So, also, tire District Court held. Undoubtedly" }, { "docid": "23705252", "title": "", "text": "of shares held by customers who were “long” of Ray Consolidated at the time of the suspension was 4,140, so that if customer John Doe (for instance) were in this latter class, and traced 100 shares of Ray Consolidated, he would be entitled only to his pro rata of 1,040 shares. In other words, after deducting from the total of 4,140 the 900 full paid, the remainder would be 3,240, and, as John Doe owed 100 shares, his proportionate ownership of the securities thus remaining would be 100/324o. There would be 1,040 shares left with which to satisfy claims for 3,240 shares; wherefore it would follow, from the master’s theory, that John Doe would be entitled to 10%2io of 1,040 shares. This view of the master follows a rather ingenious argument, which carries the theory of presumptive restoration to its ultimate limit. The theory now pressed is that it must be presumed that when the stockbroker, for his own purposes, was converting Ray Consolidated, he converted those shares belonging to margin customers, because he owed the cash customers the highest duty not to deal wrongfully with their securities. The difficulty with this theory, as I see it, is that it confuses tracing with priority. Preliminarily, it may be stated that, where a claimant has traced by certificat e number, or, under Gorman v. battlefield, where there is no other claimant for the same kind of stock, such claimant so tracing is entitled to all of that stock represented either by the identical certificate number or by the same kind of stock “in the box” of the bankrupt, as the case may be. Whether such a claimant shall be then placed in class A or B depends upon the character of the equity of that claimant as developed by the facts. It thus remains to consider what the relations are between cash customers and margin traders under such circumstances as were passed upon by the master in respect, for instance, of Ray Consolidated. The stockbroker, of course, had no right whatever to hypothecate a security of a cash customer. Under the" }, { "docid": "23705260", "title": "", "text": "27,770), but has not traced by certificate number his remaining 300 shares. (It is not clear to me what has been held by the master in this regard. This point may be taken up on the settlement of the order.) In view of the fact that the conclusions under this heading affect a number of claims, the general principles will be restated, even at the expense of repetition: Where, by reason of conversion, less shares of a certain stock are found “in the box” than are necessary to satisfy the claims of “long” customers, the procedure is first to trace. If a claimant identifies his stock by certificate number, etc., he is entitled to reclaim that stock or its proceeds. After such specifically identified shares are withdrawn from the total of shares, the remaining claims will be prorated under Duel v. Hollins, supra. After the proper pro rata has been assigned to each claimant who has successfully traced, then the equities of the claimant will be considered, in order to determine whether the claim falls under class A or class B. I have not discussed any of the contentions revolving around tire fact that the stock was in the Harris pledge, and not physically in the Wilson box, because I regard that fact as immaterial for the purposes of the discussion under this head. Further, if there are any cases where there are less shares found than are necessary ,to satisfy the claims of “long” customers, but where it can be shown that stock has been legitimately used under the terms of the agreement to cover short sales, then, obviously, the situation is different. In such instances, it is a proper and fair presumption that the broker utilized only those securities which he had the right tO' lend, leaving unaffected the-securities paid for by cash customers. I have not attempted to examine the details of each claim, and the proper classification thereof may be taken up upon the settlement of the order. Date of Valuation of Securities. It has happened in this case, and doubtless will in others, that some-securities" }, { "docid": "23705259", "title": "", "text": "was $21,685. The debit balance against Knowles was only $11,108.60.' Under my interpretation of Ex parte Bamford and Ex parte Braun, supra, this puts the claim of Knowles in class A. Using the illustrative figures, this would entitle Knowles to 1000/4120 of 1,920 shares of Ray Consolidated, or 466.02 shares of that stock. Multiplying 466.02 by $15,619 would give the total amount for which Knowles is entitled to a lien. For his balance, Knowles is a general creditor. Where claimants have failed to prove their claim to a pro rata of Ray Consolidated, such failure cannot enlarge the pro rata of those who have traced. Matter of Pierson, 233 Eed. 519, 147 C. C. A. 405; Id., 238 Fed. 142, 151 C. C. A. 218. In giving the figures above, it will be understood that I am using them only by way of illustration. It is contended, for instance, that Wallace has traced by certificate numbers. It seems to me, on the evidence, that Wallace has traced 200 shares by certificate numbers (Nos. 20,523 and 27,770), but has not traced by certificate number his remaining 300 shares. (It is not clear to me what has been held by the master in this regard. This point may be taken up on the settlement of the order.) In view of the fact that the conclusions under this heading affect a number of claims, the general principles will be restated, even at the expense of repetition: Where, by reason of conversion, less shares of a certain stock are found “in the box” than are necessary to satisfy the claims of “long” customers, the procedure is first to trace. If a claimant identifies his stock by certificate number, etc., he is entitled to reclaim that stock or its proceeds. After such specifically identified shares are withdrawn from the total of shares, the remaining claims will be prorated under Duel v. Hollins, supra. After the proper pro rata has been assigned to each claimant who has successfully traced, then the equities of the claimant will be considered, in order to determine whether the claim falls" }, { "docid": "23705253", "title": "", "text": "the cash customers the highest duty not to deal wrongfully with their securities. The difficulty with this theory, as I see it, is that it confuses tracing with priority. Preliminarily, it may be stated that, where a claimant has traced by certificat e number, or, under Gorman v. battlefield, where there is no other claimant for the same kind of stock, such claimant so tracing is entitled to all of that stock represented either by the identical certificate number or by the same kind of stock “in the box” of the bankrupt, as the case may be. Whether such a claimant shall be then placed in class A or B depends upon the character of the equity of that claimant as developed by the facts. It thus remains to consider what the relations are between cash customers and margin traders under such circumstances as were passed upon by the master in respect, for instance, of Ray Consolidated. The stockbroker, of course, had no right whatever to hypothecate a security of a cash customer. Under the agreement between the ’broker and his margin customers the security of a margin customer could be loaned by the stockbroker or pledged by him for the sum due thereon, or for a greater sum, without further notice to the margin customer. The securities belonging to a margin customer, against whom there was a debit balance, could be and were lawfully hypothecated, and securities of such a margin customer could be taken out of the pledge to enable the broker to lend the “long” margin customer’s stock to the “short” customers ; but the broker had no right to use the hypothecated securities of the margin customer for his own purposes. If the broker sold any securities in the pledge for his own speculative account, he was guilty of conversion. The testimony in regard to Ray Consolidated is as follows: “Q. Will you tell us with regard, to Ray Consolidated the condition, the net condition, at the date of the failure? A. 1,940 shares. “By Mr. Gaylord: Q. The longs and shorts, you mean, and between" }, { "docid": "23705208", "title": "", "text": "has held, where the claimant has successfully traced, that the claimant is in class A and entitled to a lien on the proceeds. Such claimants insist that Rolph is in precisely the same situation as they are, and that the mere accident that Rolph’s 300 shares have survived liquidation does not give him equities superior to them. The proposition thus advanced by those opposing Rolph’s contention seems obvious upon simple principles of equity, for nothing is better settled than that equity will treat alike those similarly situated. Rolph, however, presses the point that a different view was entertained by the Circuit Court of Appeals for this circuit in the case of In re T. A. McIntyre & Co. (Appeal of Pippey) 181 Fed. 955, 957, et seq., 104 C.C.A. 419. In view of its importance in the pending controversy, I have thoroughly examined the record on appeal in Pippey’s Case. In that case the involuntary petition against McIntyre & Co., stockbrokers, was filed on April 24, 1908. About March 4, 1907, McIntyre & Co. obtained a loan from the Metropolitan Trust Company of $200,000 and deposited as collateral thereto, a large number of stocks and bonds. On April 23, 1908, the day before the filing of the petition in bankruptcy, McIntyre & Co., without right, pledged Pippey’s stock with the Metropolitan Trust Company as part of the collateral to the loan aforesaid. On April 25, 1908, Pippey demanded from the Trust Company his certificate of stock, which was still in the Trust Company’s possession, and whose identity had been preserved. It is unnecessary to describe in further detail Pippey’s efforts, which are sufficiently set forth in the opinion of the court in 181 Fed. at page 957 et seq., 104 C. C. A. 419. The master reported (pages 39 and 40) that after the bankruptcy, and on April 24, 1908, the Trust Company applied certified checks for $70,000 toward the payment of the $200,000 loan, reducing the principal thereby to $130,000 and thereafter the Trust Company from time to time sold the securities, applying the proceeds in reduction of the" }, { "docid": "19725357", "title": "", "text": "that motion, the motion for summary judgment on count II will be granted. Plaintiff Kahn in count I still has a § 10(b) claim against defendants Taylor, Hebeisen, and Minnetonka, Inc. IV. The “Heritage” Method Plaintiffs N.M. Mittica, M.D., P.C., Profit Sharing Plan and N.M. Mittica, M.D., P.C., Pension Plan (hereinafter the Plans) in the Kirkwood class action and plaintiffs LaVictoire and Neiders in their individual actions claim that they can trace their shares through what this court has termed the “heritage” method. This method is the most complex of the methods plaintiffs advance. Plaintiffs contend that they purchased stock in the over-the-counter market and received stock certificates registered in their individual names. In the records of Minnetonka’s stock transfer agent, plaintiffs identified by code number the certificates they had received. Then plaintiffs identified the particular certificates from which their individual certificates were issued. The process was continued until plaintiffs determined the ultimate origin of their certificates. Some of those certificates were expressly issued in the March 5, 1981 offering. Thus, plaintiffs maintain, they can trace their shares to the offering. Defendants argue that this tracing only shows that the shares “might” have been issued in the offering. First, defendants say, not all of the shares in certificates through which plaintiffs trace were offering shares. Plaintiffs cannot prove that the shares they received were traceable to the new versus old certificates. For example, defendants explain, the plaintiffs Neiders received three certificates for their stock, numbered MU038,125 representing 1,000 shares, MU038,126 representing 500 shares and MU038,286 representing 500 shares. The first two certificates totalling 1500 shares were issued on the surrender of four different certificates, three of which could eventually trace part of their heritage to offering stock (MUO33,047, MU037,214 and MUO37,106) and one which could not (MU037,312). That latter certificate represented 2020 shares. Defendants explain that this one certificate with 2,020 shares could have produced plaintiffs’ 1500 shares just as easily as the other three certificates totalling 7,490. Clearly all 9,510 shares (2,020 and 7,490) did not become part of plaintiffs’ current certificates. It is just as likely that those" }, { "docid": "22235608", "title": "", "text": "v. Shaw, 209 U. S. 365. Markham v. Jaudon, 41 N. Y. 235. So a depositor in a grain elevator may have a property in grain in a certain elevator although the keeper is at liberty to mix his own or other grain with the deposit and empty and refill the receptacle twenty times before making good his receipt to the depositor concerned.” It is therefore unnecessary for a customer, where shares of stock of the same kind are in the hands of a broker, being held to satisfy his claims, to be able to put his finger upon the identical certificates, of stock purchased for him. It is enough that the broker has shares of the same kind which are legally subject to the demand of the customer. And in this respect the trustee in bankruptcy is in the same position as the broker. Richardson v. Shaw, supra. It is said, however, that the shares in this particular case are not so identified as to come within the rule. But it does appear that at the time of bankruptcy certificates were found in the bankrupt’s possession in an amount greater than those which should have been on hand for this customer, and the significant fact is shown that no other customer claimed any right in those shares of stock. It was, as we have seen, the duty of the broker, if he sold the shares specifically purchased for the appellant, to buy others of like kind and to keep on hand subject to the order of the customer certificates sufficient for the legitimate demands upon him. If he'did this, the identification of particular certificates is unimportant. Furthermore, it was the right and duty of the broker, if .he-sold the certificates, to use his own funds to keep the amount good, and this he could do without depleting his estate to the detriment of other creditors who had no property rights in the certificates held for particular .customers. No creditor could justly demand that the estate be augmented by a wrongful conversion of the property of another in this manner" }, { "docid": "23705256", "title": "", "text": "he converted securities belonging both'to cash customers and to margin customers. At this point it is urged that it must be presumed that he selected the stock of the margin customer for the purpose of converting it, leaving untouched the stock of the cash customer. The difficulty with this theory is that, the stockbroker had no more right to convert the stock of a margin customer than he had to convert the stock of a cash customer; for, although the broker had the right to pledge or lend the margin customer’s stock under the terms and within the limits of his agreement with the margin customer, he was not thereby authorized to convert it. The conclusion of the special master in this regard can be sustained only by invoking the purest kind of legal fiction, not in my opinion justified by anything said in Gorman v. Littlefield, supra, or Duel v. Hollins, supra, or to be inferred therefrom. The logical procedure, it seems to me, is that the first requirement laid upon a claimant is to trace his stock or its identifiable proceeds. If he fails in that regard, no matter how grievous the wrong, he becomes a general creditor. Without discussing in detail the principles laid down in the Gorman and Duel Cases, supra, the ultimate result is that the claimant must'find physically in existence either the precise certificate or a stock in kind, or the earmarked proceeds where there is a liquidation, as in the case at bar, and, if there are not enough shares to satisfy the particular group of claimants, then such claimants are entitled to their pro rata. So, in the case at bar, the 20 shares of M. C. Hayes were traced by certificate number. I shall assume, solely for the purpose of this illustration, that no other shares were thus traced by certificate number. There remained, therefore, 1,920 shares. Of this total English traced 100 shares. As above stated, the total number of shares of customers of Wilson who were “long” of Ray Consolidated, at the time of suspension, was 4,140. Deducting from" }, { "docid": "23705213", "title": "", "text": "Mrs. Miller’s status as matter of equity was equal to that of Pippey; but as she did not petition to revise, nor appeal, she was apparently satisfied with the disposition below. Julia A. Stone (47). Mrs. Stone, through her husband, on April 20, 1908, bought 20 shares of Pennsylvania Railroad Company stock, and paid in full on April 21, 1908, when the certificates were delivered to McIntyre & Co. On the same day McIntyre & Co. pledged Mrs. Stone’s stock with the Metropolitan Trust Company. The market value of the shares at the date of the bankruptcy was $1,185. On April 29, 1908, the Trust Company sold Mrs. Stone’s 20 shares of Pennsylvania stock for the net sum of $1,211.05, and applied the proceeds in liquidation of the loan. On the date of the failure McIntyre & Co. owed to various customers in all 1,582 shares of Pennsylvania stock. The master held that Mrs. Stone had traced her stock, and, placing her claim at $1,185, held that she shared pro rata. Here, also, undoubtedly, the position in equity of Mrs. Stone was equal to that of Pippey; but Mrs. Stone neither petitioned to revise nor appealed. (See below.) Dyke Quackenbush (50). In regard to this claim it was held that McIntyre & Co. were authorized by Quackenbush to pledge his stock, and the master correctly stated: “The claims of Pippey and others, whose stocks were wrongfully converted by McIntyre & Co., are superior to any claim of Quackenbush, and the surplus money and securities are not sufficient to satisfy such prior claims. Claimant has therefore failed to establish any claim herein, and his petition must be dismissed, with costs.” So, also, held the District Judge, and from this there was no appeal. Mary H. Hudson (54). Mrs. Hudson was the owner of the 200 shares of American Can preferred, which were not sold by the Trust Company. The transactions with her are sufficiently described in 181 Fed. 959, 104 C. C. A. 419, not to require repetition. It will be noted, however, that the Circuit Court of Appeals treated her" }, { "docid": "1002376", "title": "", "text": "to identify the portion sold either as that acquired in 1916, as plaintiff claims,' or that owned in 1913, as the defendant claims. But the tax laws are practical; consideration is given to the fact that men do buy stock in various lots, and sell them in the same way. Judge Learned Hand has said, on this point: “The plaintiff answers this argument by saying that, if so, all shares at any time held by a stockholder must be brought into hotchpot and averaged. I scarcely think that consistency requires me to go so. far. The law may, and in fact does, recognize an identity in every share, which can indeed be traced upon the books of the company, at least until certificates are consolidated, and later subdivided. The purchase of a number of shares can be earmarked by the certificate, \"and it is an enormous convenience to keep the purchases separate.”. Towne v. McElligott (D. C.) 274 F. 960, 963. A theoretical plan might have been devised, by which an average cost or March 1, 1913, value of all shares owned should be ascertained as a starting point from which to figure profit or loss on sales. But the government adopted a more practicable method, and it is incorporated in Regulations 45, Article 39, which reads: “When shares of slock in a corporation are sold from lots purchased at different times and at different prices and the identity of the lots cannot be determined the stock sold shall be charged against the earliest purchases of such stock. The exeess of the amount realized on the sale over the cost of the stock, or its fair market values as of March 1,1913, if purchased before that date, will be the profit to be accounted for as income.” Both parties agree that the regulation is a valid one, and it answers this law suit. The trial court has found, on sufficient evidence, that the “identity of the lots” can be and has been determined. This finding cannot be overturned because one piece of evidence — the certificates delivered — is to" }, { "docid": "15215892", "title": "", "text": "appellees contend, that bonds are unlike stock certificates; that the former are or are analogous to chattels, like automobiles of a given make, model, and year, each with its own identity and individuality, although for most purposes indistinguishable from one another, while the latter are but tokens of an incorporeal undivided interest in a corporation; that therefore the principles of identification, if not of tracing, are inapplicable; and that as the originally deposited bonds are not on hand, there can be no recovery. The right to trace, and, even without tracing, to obtain like stock certificates on hand is not, however, due to their character as tokens of a chose in action, but to their interchangeability — their fungible nature. In truth, the serial number of a stock certificate identifies it exactly as does the serial number of a bond; in the one as in the other this identification may for some purposes be vital. Oppenheimer, supra, page. 868. But in so far as such certificates are agreed or are deemed in law to be fungible, negotiable bonds, al; least those of the same issue and maturity must likewise be treated as fungible property; we find no basis for a differentiation between the two kinds of securities. In Re Farmers’ & Merchants’ Bank of Jones (C. C. A. 6) 286 F. 924, negotiable bonds were involved and the record in that ease, as in the instant case, does not show that the bonds on hand were the identical ones originally deposited. It follows therefore that as between appellant and the trustee in bankruptcy the former is entitled to the bonds. But inasmuch as at the time of the filing of the petition in bankruptcy they were in the hands of a bona fide pledgee as collateral, with other securities, for the bankrupts’ debt, and, being negotiable instruments, were subject to tbe pledgee’s lien, appellant’s right of reclamation, good as against general creditors, is subject to possible contribution. And a claimant of some of the securities ‘sold by the pledgee has answered the petition and set up his right to contribution" }, { "docid": "23705257", "title": "", "text": "to trace his stock or its identifiable proceeds. If he fails in that regard, no matter how grievous the wrong, he becomes a general creditor. Without discussing in detail the principles laid down in the Gorman and Duel Cases, supra, the ultimate result is that the claimant must'find physically in existence either the precise certificate or a stock in kind, or the earmarked proceeds where there is a liquidation, as in the case at bar, and, if there are not enough shares to satisfy the particular group of claimants, then such claimants are entitled to their pro rata. So, in the case at bar, the 20 shares of M. C. Hayes were traced by certificate number. I shall assume, solely for the purpose of this illustration, that no other shares were thus traced by certificate number. There remained, therefore, 1,920 shares. Of this total English traced 100 shares. As above stated, the total number of shares of customers of Wilson who were “long” of Ray Consolidated, at the time of suspension, was 4,140. Deducting from this total the 20 shares of Hayes, the remainder is 4,120. English, therefore, is entitled to 100/4120 of the 1,920 shares which are left after awarding 20 shares to Hayes, or to 46.602 shares. As Ray Consolidated sold for $15,619 per share, the 46.602 shares of English must be multiplied by $15,619, and the result will represent the lien of English. Hawing thus ascertained the proportion of shares to which English is entitled, the next inquiry is -as to the class to which his claim belongs. It appearing that English owned his Ray Consolidated outright, his claim falls in class A, for reasons heretofore stated. On the other hand, to make the illustration complete, another claimant, who traced his specific. 20 shares of Ray Consolidated, might nevertheless be placed in class 11 for reasons set forth supra. (See heading “Godwin’s Claim.”) The master found that Knowles’ 1,000 shares of Ray Consolidated had been converted prior to bankruptcy in an amount sufficient to pay his debt in full. The cost price of Knowles’ 1,000 Ray Consolidated" }, { "docid": "22235605", "title": "", "text": "same tin box. It was customary to take certificates to make delivery from that box, indiscriminately, unless the certificate had been transferred to the name of the customer. At no time before the failure did the claimant receive his shares of the Green Cananea Copper stock, nor did he order its sale. Upon these facts the question is, Are these shares of stock a part of the general estate for the benefit of creditors or should they be turned over to the claimants? In Richardson v. Shaw, 209 U. S. 365, the nature of this property was the subject of discussion and decision in this court. In that case a broker, who had been adjudicated a bankrupt, shortly before, the bankruptcy and after his insolvency turned over upon demand to a customer shares of stock similar to those which had been held for the customer and for an equal number of shares. It was contended that under the circumstances this delivery of certificates amounted to a preference under the Bankruptcy Act. This court therefore had to consider the legal relation of customer and broker, in buying and holding shares of stock, and it was held that the certificates of stock were not the property itself, but merely the evidence of it, and that a certificate for the same number of shares represented precisely the same kind and value of property as another certificate for a like number of shares in the same corporation; that the return of a different certificate or the substitution of one. certificate for another made no material change in the property right of the customer; that such shares were unlike distinct articles of personal property,, differing in kind or value, as a horse, wagon or harness, and that stock has no earmark which distinguishes one share from another, but is like grain of a uniform quality in an elevator, one bushel being of The same kind and value as another. It was therefore concluded that the turning over of the certificates for the shares of stock belonging to the customer and held by the broker for" }, { "docid": "23705250", "title": "", "text": "be placed in class A, and a claim like Marsan’s in class B. The Extent of the Presumption of Restoration as Applied to Margin Claimants and Cash Claimants. Claim of English as to 100 Ray Consolidated Copper — Claim of Knowles as to 1,000 Ray Consolidated Copper. On July 15, 1912, in accordance with English’s request, Eogan & Bryan delivered to Harris certificates for 400 shares of Ray Consolidated, belonging to English, which Harris received on account of Wilson. On October 22, 1912, Wilson purchased through Harris, for account of English, 100 shares of this stock. From time to time between December 12, 1912, and July 28, 1914, Wilson sold through Harris, for account of English, 400 shares of Ray Consolidated. Wil- sou owed cash customers 900 shares of this stock (100 to English and 800 to others), and from the time of the suspension until December 14, 1914, Wilson had on hand with Harris 1,940 shares. On December 14, 1914, Harris sold 1,910 shares of this stock for $30,300.99; i. e., at $15,619 per share. The master found that English had traced his 100 shares of stock, and awarded to hito a lien in class A for $1,561.90. This conclusion of the master was based upon the theory that English had a claim superior to those of the margin traders. In other words, as Wilson owed only 900 shares of this stock to cash customers, and had on hand with Harris 1,940 shares, the master has awarded in full to the cash customers, and it would follow from this holding that margin customers, who had traced, under Gorman v. Uitlefield and Duel v. Hollins, would receive only their pro rata, of the remaining shares. Using, for purposes of illustration, these figures as to Ray Consolidated, and, for the moment, not referring to other features of any particular claim, the effect of the master’s holding is that 900 shares are available to cash customers in class A, and the remaining 1,040 shares are to be prorated among those who have traced, but who are not cash customers. The total number" }, { "docid": "22910838", "title": "", "text": "that the certificates of stock were not the property itself, but merely the evidence of it, and that a certificate for the same number of shares represented precisely the same kind and value of property as another certificate for a like number of shares in the same corporation; that the return of a different certificate or the substitution of one certificate for another made no material change in the property right of the customer; that such shares were unlike distinct articles of personal property, differing in kind or value, as a horse, wagon or harness, and that stock has no earmark which distinguishes one share from another, but is like grain of a uniform quality in an elevator, one bushel being of the- same kind and value as another. It was therefore concluded that the turning over of the certificates for the shares of stock belonging to the customer and held by the broker for him did not amount to a preferential transfer of the bankrupt’s property.” And we there further declared (pp. 24-25): “It is therefore unnecessary for a customer, where shares of stock of the same kind are in the hands of a broker, being held to satisfy his claims, to be able to put his finger upon the identical certificates of stock purchased for him. It is enough that the broker has shares of the same kind which are legally subject to the demand of the customer. And in this respect the trustee in bankruptcy Is in the same position as the broker. Richardson v. Shaw, supra. It is said, however, that the shares in this particular case are not so identified as to come within the rule. But it does appear that at the time of bankruptcy certificates were found in the bankrupt’s possession in an amount greater than those which should have been on hand for this customer, and the significant fact is shown that no other customer claimed any right in those shares of stock. It was, as we have seen, the dtoy of the broker, if he sold the shares specifically purchased'for the" }, { "docid": "22235606", "title": "", "text": "to consider the legal relation of customer and broker, in buying and holding shares of stock, and it was held that the certificates of stock were not the property itself, but merely the evidence of it, and that a certificate for the same number of shares represented precisely the same kind and value of property as another certificate for a like number of shares in the same corporation; that the return of a different certificate or the substitution of one. certificate for another made no material change in the property right of the customer; that such shares were unlike distinct articles of personal property,, differing in kind or value, as a horse, wagon or harness, and that stock has no earmark which distinguishes one share from another, but is like grain of a uniform quality in an elevator, one bushel being of The same kind and value as another. It was therefore concluded that the turning over of the certificates for the shares of stock belonging to the customer and held by the broker for him did not amount to a preferential transfer of the bankrupt’s property. In the subsequent case of Sexton v. Kessler, 225 U. S. 90, this court, speaking of the relation of customer.and broker, said (p. 97): “When a broker agrees to carry stock for a customer he may buy stocks to fill several orders in a lump; he may increase his single purchase by stock of the same kind that he wants for himself; he may pledge the whole block thus purchased for what sum he likes, or deliver it all in satisfaction of later orders, and he may satisfy the earlier customer with any stock that he has on hand or that he buys when the time for delivery comes. Yet as he is bound to keep stock enough to satisfy his contracts, as the New York firm in this case was bound to substitute other security if it withdrew any, the customer is held to have such an interest that a delivery to him by an insolvent broker is not a preference. Richardson" } ]

[ { "docid": "22646461", "title": "", "text": "the courts employed principles of federal law frequently at variance with the concepts of labor law in the States where they sat. Congress acted to prevent the injunctions of the federal courts from upsetting the natural interplay of the competing economic forces of labor and capital. Rep. LaGuardia, during the floor debates on the 1932 Act, recognized that the machinery of the Railway Labor Act. channeled these economic forces, in matters dealing with railway labor, into special processes intended to compromise them. Such controversies, therefore, are not the same as those in which the injunction strips labor of its primary weapon without substituting any reasonable alternative. In prior cases involving railway labor disputes, this Court has authorized the use of injunctive relief to vindicate the processes of the Railway Labor Act. Virginian R. Co. v. System Federation No. 40, 300 U. S. 515, was an action by the union to enjoin compliance with the Act’s provisions for certification of a bargaining representative. The question raised was whether a federal court could issue an injunction in a labor dispute. The Court held: “It suffices to say that the Norris-LaGuardia Act can affect the present decree only so far as its provisions are found not to conflict with those of § 2, Ninth, of the Railway Labor Act, authorizing the relief which has been granted. Such provisions cannot be rendered nugatory by the earlier and more general provisions of the Norris-LaGuardia Act.” Id., at 563. In Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768, and other similar eases, the Court held that the specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act. “Our conclusion is that the District Court has jurisdiction and power to issue necessary injunctive orders [to enforce compliance with the requirements of the Railway Labor Act] notwithstanding the provisions of the Norris-LaGuardia Act.” Id,., at 774. This is a clear situation for the application of that principle. The Brotherhood has cited several cases in which it has been held that the Norris-LaGuardia Act’s ban on federal injunctions is" } ]

[ { "docid": "23030394", "title": "", "text": "them the 1926 provisions of the Railway Labor Act, which included most of the present procedures for settling major disputes, the provisions for disposing of minor disputes through voluntary local boards, and Seetion 2 First and Second, 44 Stat. 577 (1926), 45 U.S.C.A. § 152 First and Second, which imposed on both management and labor the duty to confer over any dispute. All of these provisions channeled, but did not eliminate, the operation of private forces in the determination of labor disputes. See Brotherhood of R. R. Trainmen v. Toledo, P. & W. R. R., 321 U.S. 50, 58-59, 64 S.Ct. 413, 88 L.Ed. 534 (1944); cf. 75 Cong. Rec. 4505-10, 4618-26, 5462-515 (1932). Subsequent labor legislation, however, including the 1934 amendments to the Railway Labor Act which provided for official adjudication of certain labor disputes by the National Railroad Adjustment Board, reflected a policy of inter-positioning greater governmental participation in labor relations. See Note, Accommodation of the Norris-LaGuardia Act to Other Federal Statutes, 72 Harv.L.Rev. 354, 356 (1958). To accommodate the differing policies underlying the Norris-LaGuardia Act and the Railway Labor Act is not an easy task. In Brotherhood of R. R. Trainmen v. Chicago River & Ind. R. R., 353 U.S. 30, 40, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957), the Supreme Court stated: “ * * * the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved. We think that the purposes of these Acts are reconcilable.” On numerous occasions courts have issued injunctions in labor disputes despite the apparently categorical language of the Norris-LaGuardia Act. In Virginian Ry. v. System Fed’n 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937), a labor union which had been certified by the National Mediation Board obtained an injunction against a railroad commanding the road to deal with it and not to interfere with the employees’ choice of a bargaining representative. In a series of cases the Supreme Court" }, { "docid": "5548276", "title": "", "text": "SWYGERT, Circuit Judge. The action instituted below was for an injunction to enjoin a planned strike of ■the conductor-employees of plaintiff, The Pullman Company. The defendants include the Order of Railway Conductors and Brakemen and two officers of that labor organization. A temporary restraining order was granted pending a trial on the merits which occurred on April 18, 1962. The trial judge, on April 23, 1962, entered findings of fact, conclusions of law, and a final decree enjoining the strike. This appeal therefrom followed. The injunction was granted on the ground that the conductors’ organization had violated the Railway Labor Act, 45 U.S.C. § 151 et seq. It is clear that the District Court lacked jurisdiction to grant an injunction in this labor dispute, Norris-LaGuardia Act, 29 U.S. C. § 101 et seq., unless a clear violation of the Railway Labor Act was shown. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). The common stock of The Pullman Company is owned by fifty-three railroads that acquired its capital stock in 1947, following a decree of a federal district court in Philadelphia requiring Pullman, Inc. to divest itself of its sleeping car business. The Pullman Company as it presently exists under railroad ownership is a service enterprise. Under its Uniform Service Contract with the railroads it serves, Pullman must offer its services as an innkeeper of hotels on wheels to any railroad which desires its service. Upon notice, any railroad can discontinue its service requirements; furthermore, each railroad has the right at any time to take over the operation of sleeping cars from Pullman. The instant dispute revolves around the right of the railroads to discontinue their relations with Pullman on short notice and the disruptive effect this may have on the employees of Pullman represented by the conductors’ organization, While other issues are collaterally in volved in the dispute between Pullman and the organization, it is sufficient for our" }, { "docid": "18788073", "title": "", "text": "1012 (1938)). If secondary activity resting on political motives is within the Act’s scope, as the Court suggested, then we think it follows a fortiori that the secondary activity at issue in this case is also covered. II Our conclusion that this case “involves or grows out of a labor dispute,” however, does not constitute the end of the matter. The Supreme Court has recognized that the Norris-LaGuardia Act’s anti-injunction provisions must be accommodated in certain instances to the mandate of other federal labor statutes. See, e.g., Boys Market, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In this regard, federal courts retain the power to compel compliance with the dispute resolution mechanisms of the Railway Labor Act, 45 U.S.C. § 151 et seq. (1982) (“RLA”). See Brotherhood of R.R. Trainmen v. Chicago River & I. R.R., 353 U.S. 30, 39-42, 77 S.Ct. 635, 639-41, 1 L.Ed.2d 622 (1957); Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 581-84, 91 S.Ct. 1731, 1737-39, 29 L.Ed.2d 187 (1971). This exception to the Norris-LaGuardia Act is a narrow one, however, applicable only where injunctive relief is “the only practical, effective means” of enforcing the procedural duties imposed upon parties by the RLA. Id. at 583, 91 S.Ct. at 1738. The dispositive issue in this case, then, is whether BMWE was required to attempt to settle its “dispute” with Central Vermont through the statutory mediation procedures before resorting to self-help. Central Vermont’s controversy with BMWE clearly is not a typical dispute contemplated by the RLA’s settlement procedures. The RLA generally provides for mediation of “major” disputes, which concern proposed changes in terms and conditions of employment, see 45 U.S.C. § 155 (First) (1982), and for adjustment of “minor” disputes, which concern the interpretation or application of agreements, see id. § 153 (First) (i). The instant “dispute” is neither of these. The picketing of which Central Vermont complains is being conducted by individuals who are not its employees and with whom it has no bargaining relationship. The amici railroads nonetheless contend that secondary" }, { "docid": "23165102", "title": "", "text": "Latter v. Holsum Bread Co., 108 Utah 364, 375, 160 P.2d 421, 426. In reaching the conclusion that under § 301 of the Taft-Hartley Act federal courts can specifically enforce arbitration clauses in labor contracts, this Court has not overlooked either the Federal Arbitration Act of 1925, 9 U.S.C. § 1 et seq., or the Norris-LaGuardia Act of 1932, 29 U.S.C.A. § 101 et seq. The former was drafted a generation ago, prior not only to the Taft-Hartley Act but also the labor relations situation that has developed since the 1930’s. If that Act reflects any policy toward enforcement of voluntary arbitration clauses in labor contracts, it is a policy strictly confined to the interpretation and direct enforcement of that statute. The Norris-LaGuardia Act is likewise a statute earlier than the Taft-Hartley Act. The general structure, detailed provisions, declared purposes, and legislative history of that statute show it has no application to cases where a mandatory injunction is sought to enforce a contract obligation to submit a controversy to arbitration under an agreement voluntarily made. Milk and Ice Cream Drivers & Dairy Employees v. Gillespie Milk Products Corp., 6 Cir., 203 F.2d 650; Textile Workers Union of America v. Aleo Mfg. Co., D.C.M.D.N.C., 94 F.Supp. 626; Mountain States Division No. 17 v. Mountain States Tel. & Tel. Co., D.C.D.Colo., 81. F.Supp. 397. See Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 81 L.Ed. 789; Sanford v. Boston Edison Co. 316 Mass. 631, 637-638, 56 N.E.2d 1, 156 A.L.R. 644; Note, 37 Va.L.Rev. 737. But see United Packing House Workers v. Wilson & Co., D.C.N.D.Ill., 80 F.Supp. 563, 567-570. Indeed one of the very objects of the statute was to induce the parties instead of promptly going to court for broad injunctions hastily issued, restraining tortious or other conduct, first “to make every reasonable effort to settle such dispute * * * by * * * voluntary arbitration.” § 8 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U.S.C.A. § 108. Defendant’s final point is that this case cannot be sent to arbitration because" }, { "docid": "13447859", "title": "", "text": "hearing or raise any objection whatsoever to the procedure under which the TRO was issued. Moreover, the defendants continued to agree to the extension of the TRO without ever even requesting to submit rebuttal affidavits or present oral testimony. In light of these circumstances, the defendants’ eleventh hour objections cannot be sustained. See Railway Express Agency v. BRAC, 437 F.3d 388 (5th Cir. 1971). In addition, it is not clear that either the Railway Labor Act or the Norris-LaGuardia Act require a full hearing prior to the issuance of every injunction. See: Missouri-Kansas-Texas R.R. Co. v. Brotherhood of Locomotive Engineers, 266 F.2d 335 (5th Cir. 1959), rev’d on other grounds, 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379 (1960). See also: Squillacole v. Graphic Arts Int'l Union, 540 F.2d 853 (7th Cir. 1976); Drywall Tapers & Painters Local 1974 v. Operative Plasterers’ and Cement Masons’ International Assoc. of the United States and Canada, 537 F.2d 669 (2nd Cir. 1976); Celotex Corp. v. OCAW, 516 F.2d 242 (3rd Cir. 1975) [harmless error]. But see: Piedmont Aviation, Inc. v. Air Line Pilots Ass'n International, 416 F.2d 633, 637 n. 7 (4th Cir. 1969). 23. The procedure under which the October temporary restraining order was issued was in full compliance with Rule 65(b) of the Federal Rules of Civil Procedure. See generally Wright & Miller, Federal Practice & Procedure: Civil §§ 2951-2952. 24. This Court had jurisdiction to enter the October 18, 1980 temporary restraining order, the Norris-LaGuardia Act notwithstanding. Chicago & Northwestern Ry. Co. v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971); Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Atlanta & West Point R. Co. v. United Transportation Union, 439 F.2d 73 (5th Cir. 1971), cert. denied, 404 U.S. 825, 92 S.Ct. 53, 30 L.Ed.2d 53 (1971). Therefore, the defendants’ Motion to Vacate is DENIED. 25. The contempt of defendant ALPA of the prohibitions contained in" }, { "docid": "21554043", "title": "", "text": "issuing injunctions to enforce positive duties imposed by other federal labor statutes. See, e.g., Brotherhood of R.R. Trainmen v. Chicago River & Ind. Ry., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957) (union’s statutory duty to arbitrate “minor disputes” under the Railway Labor Act); Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952) (union’s duty under RLA not to discriminate against non-union black train porters); Graham v. Brotherhood of Locomotive Firemen & Eng’rs, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949) (union’s duty under RLA, as the exclusive bargaining representative, to provide nondiscriminatory representation); Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937) (employer’s duty under RLA to recognize and negotiate with the duly accredited labor representative). The preliminary injunction granted below cannot be sustained on the rationale of any of these existing exceptions to the Act. Camping concedes as much, but asserts that we should make a new accommodation, one it considers similar. This argument is based not on the necessity of accommodating the 1934 legislation to the policies reflected in some newer federal statute, but rather on the employer’s view of the policy behind the Norris-LaGuardia Act itself. According to Camping: The Norris LaGuardia Act was enacted in response to the use of injunctions as a weapon against employee concerted activity. (Section 2, 29 U.S.C. § 102). Historically, injunctions prohibiting such concerted activity often had the effect of tipping the balance in favor of one or the other of the parties to a labor dispute, since strikes and other concerted activity were time-sensitive_ In this case, the underlying policy behind the Norris La-Guardia Act is not called into play, since concerted activity is not involved. Thus, Camping would apparently have us hold that the Act protects only strikes, or other disruptive group conduct. The employer cites no authority for this policy analysis, and we find no support for it in federal labor law. In fact, a host of considerations militate against Camping’s proposal that the Norris-LaGuardia Act be limited" }, { "docid": "6620056", "title": "", "text": "injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of [the Act].” 29 U.S.C. § 101 (1982). The Railway Labor Act, 45 U.S.C. §§ 151-188 (1982), also enacted to promote non-judicial resolution of labor disputes, provides specific dispute resolution mechanisms which must be employed before management or labor may engage in self-help. The RLA originally applied to “any express company, sleeping-car company, carrier by railroad ... and any company which is directly or indirectly owned or controlled by [any such company].” 45 U.S.C. § 151 (1982). In 1936, the Act was expanded to apply to carriers by air. 45 U.S.C. § 181 (1982). Injunctive relief is proper under the Railway Labor Act to prohibit premature self-help in a major dispute between management and union. Chicago & N. W. Railway v. United Transportation Union, 402 U.S. 570, 582-83 & n. 17, 91 S.Ct. 1731, 1737-38 & n. 17, 29 L.Ed.2d 187 (1971). Both the Railway Labor Act and the Norris-LaGuar-dia Act were enacted to promote compelling public interests. Any factual determination in this case must be made in light of the legislative intent behind each Act. The Norris-LaGuardia Act arose out of the need to prevent overactive courts from interfering in labor-management disputes, and from undermining the ability of labor groups to effectively negotiate labor contracts. See United Steelworkers of America v. United States, 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959) (Douglas, J., dissenting). Prior to its enactment, “[freewheeling Attorneys General used compelling public demands to obtain the help of courts in stilling the protests of labor. The revulsion against that practice was deep, and it led ultimately to the enactment of the Norris-LaGuardia Act....” Id. at 67, 80 S.Ct. at 7. The Act itself sets forth the public policy to be considered in interpreting its provisions: Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and" }, { "docid": "13447863", "title": "", "text": "to enjoin strikes notwithstanding the provisions of Norris-LaGuardia when such injunctions are necessary “to vindicate the processes of the Railway Labor Act.” Id.; Chicago & Northwestern Ry. Co. v. United Transportation Union, 402 U.S. 570, 581-583, 91 S.Ct. 1731, 1737, 29 L.Ed.2d 187 (1971). In Virginian Railway Co. v. System Federation, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937), which upheld the issuance of a mandatory injunction, the Supreme Court indicated that in the event of irreconcilable conflict between the policies of the, earlier enacted, general provisions of the Norris-LaGuardia Act and those of the subsequently enacted, more specific provisions of the Railway Labor Act, the latter would prevail under the principles of statutory construction. . In Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937) the Supreme Court indicated that the thrust of 29 U.S.C. § 109, was to prohibit blanket injunctions. Here, the temporary restraining order was not a blanket injunction and it was based upon findings adduced from the verified complaint, affidavits, the plaintiff’s written motion and arguments of counsel for both parties." }, { "docid": "9838558", "title": "", "text": "District Court has jurisdiction and power to issue necessary injunctive orders [to enforce compliance with the requirements of the RLA] notwithstanding the provisions of the [NLGA].” Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 1025, 96 L.Ed. 1283 (1952); see also Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (holding that 45 U.S.C. § 152 First creates a legal obligation which a court may enforce through injunction, notwithstanding section 4 of the NLGA (29 U.S.C. § 104)); Chicago River, 353 U.S. at 42, 77 S.Ct. at 641 (holding that injunctive relief is appropriate under the RLA when a specific provision is implicated, notwithstanding the general provisions of the NLGA); Virginia Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 549-52, 57 S.Ct. 592, 600-02, 81 L.Ed. 789 (1937) (holding that injunctive relief is proper under the RLA). Although the NLGA usually deprives federal courts of jurisdiction in general categories of labor disputes, federal courts retain jurisdiction “to enjoin compliance with various mandates of the [RLA].” Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 772, 81 S.Ct. 1784, 1802, 6 L.Ed.2d 1141 (1961). However, this exception for the RLA is limited, and an injunction usually may lie only if, in addition to violation of a specific principle of the RLA, an injunction is the sole practical, effective means of enforcing the Act. See Burlington N. R.R. Co. v. Bhd. of Maintenance of Way Employees, 481 U.S. 429, 446, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987). It is clear that the substantive legal duty of 45 U.S.C. § 152 First, is a “specific provision” of the RLA and, moreover, is central to the purpose and functioning of the RLA. Therefore, the provision takes precedence over the more general provisions of the NLGA. This is not to say that the procedural standards of the NLGA do not apply, but only that the substance of the RLA is controlling. We therefore hold that when this specific provision of the RLA is implicated and there is" }, { "docid": "6620055", "title": "", "text": "factual determination as to whether ALPA’s strike is a pure sympathy strike, or whether ALPA’s sympathy claim is merely a pretext for ALPA’s own self-help. Upon EASTERN’S appeal, the Eleventh Circuit Court of Appeals vacated this Court’s Order and remanded the case “for the limited purpose of conducting further proceedings to make findings of fact on the pretext issue.” The Eleventh Circuit held that, even though it is ordinarily lawful to honor other unions' picket lines and even though the RLA does not unambiguously prohibit sympathy strikes, a claim of sympathy strike cannot be used as a pretext to shield what would otherwise be a clear violation of the RLA. Eastern Air Lines v. Air Line Pilots Association, No. 89-5229 (11th Cir. Mar. 24, 1989) (order of limited remand). DISCUSSION Two legislative enactments control the instant dispute. The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1982 & Supp. IV 1986), enacted to take “federal courts out of the labor injunction business,” prohibits courts of the United States from issuing “any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of [the Act].” 29 U.S.C. § 101 (1982). The Railway Labor Act, 45 U.S.C. §§ 151-188 (1982), also enacted to promote non-judicial resolution of labor disputes, provides specific dispute resolution mechanisms which must be employed before management or labor may engage in self-help. The RLA originally applied to “any express company, sleeping-car company, carrier by railroad ... and any company which is directly or indirectly owned or controlled by [any such company].” 45 U.S.C. § 151 (1982). In 1936, the Act was expanded to apply to carriers by air. 45 U.S.C. § 181 (1982). Injunctive relief is proper under the Railway Labor Act to prohibit premature self-help in a major dispute between management and union. Chicago & N. W. Railway v. United Transportation Union, 402 U.S. 570, 582-83 & n. 17, 91 S.Ct. 1731, 1737-38 & n. 17, 29 L.Ed.2d 187 (1971). Both the Railway Labor Act and the Norris-LaGuar-dia Act were enacted to promote compelling" }, { "docid": "9838557", "title": "", "text": "if the complainant would suffer “substantial and irreparable injury” without the TRO. 29 U.S.C. § 107. C. The Supreme Court has stated that although the prescriptions and proscriptions of the NLGA are clear, the NLGA “cannot be read alone in matters dealing with railway disputes.” Bhd. of R.R. Trainmen v. Chicago River & Ind. R.R. Co. (“Chicago River”), 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Rather, “[t]here must be an accommodation of [the NLGA] and the [RLA] so that the obvious purpose in the enactment of each is preserved.” Id. The way to accommodate these two statutes, in most circumstances, is to determine if specific provisions of the RLA are implicated. If so, “the specific provisions of the [RLA] take precedence over the more general provisions of the [NLGA].” Id. at 42, 77 S.Ct. at 641; accord Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 513, 109 S.Ct. 2584, 2598, 105 L.Ed.2d 415 (1989). When a specific provision of the RLA is implicated, “the District Court has jurisdiction and power to issue necessary injunctive orders [to enforce compliance with the requirements of the RLA] notwithstanding the provisions of the [NLGA].” Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 1025, 96 L.Ed. 1283 (1952); see also Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (holding that 45 U.S.C. § 152 First creates a legal obligation which a court may enforce through injunction, notwithstanding section 4 of the NLGA (29 U.S.C. § 104)); Chicago River, 353 U.S. at 42, 77 S.Ct. at 641 (holding that injunctive relief is appropriate under the RLA when a specific provision is implicated, notwithstanding the general provisions of the NLGA); Virginia Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 549-52, 57 S.Ct. 592, 600-02, 81 L.Ed. 789 (1937) (holding that injunctive relief is proper under the RLA). Although the NLGA usually deprives federal courts of jurisdiction in general categories of labor disputes, federal courts retain jurisdiction “to enjoin" }, { "docid": "13447862", "title": "", "text": "violations by unidentified union members or a failure to obey the “take all steps within their power” requirement of the October temporary restraining order. Therefore, the plaintiff’s application to hold defendant ALPA in contempt of this Court’s October 18, 1980 temporary restraining order is DENIED in all respects. 28. The plaintiff is to provide the Court with a proposed judgment within ten (10) days after conferring with counsel for the defendants. Each party will bear its own costs. . The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, expresses a basic policy against the injunctions of activities of labor unions. The Railway Labor Act on the other hand provides a detailed process to facilitate the voluntary settlement of major disputes. The Supreme Court has recognized a duty to reconcile the policies underlying the Norris-LaGuardia Act with those underlying the Railway Labor Act. E. g., Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R.., 353 U.S. 30, 40-42, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). The Supreme Court has held that district courts have the power to enjoin strikes notwithstanding the provisions of Norris-LaGuardia when such injunctions are necessary “to vindicate the processes of the Railway Labor Act.” Id.; Chicago & Northwestern Ry. Co. v. United Transportation Union, 402 U.S. 570, 581-583, 91 S.Ct. 1731, 1737, 29 L.Ed.2d 187 (1971). In Virginian Railway Co. v. System Federation, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937), which upheld the issuance of a mandatory injunction, the Supreme Court indicated that in the event of irreconcilable conflict between the policies of the, earlier enacted, general provisions of the Norris-LaGuardia Act and those of the subsequently enacted, more specific provisions of the Railway Labor Act, the latter would prevail under the principles of statutory construction. . In Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937) the Supreme Court indicated that the thrust of 29 U.S.C. § 109, was to prohibit blanket injunctions. Here, the temporary restraining order was not a blanket injunction and it was based upon findings adduced" }, { "docid": "13447851", "title": "", "text": "may issue injunctions to enjoin compliance with mandates of the Railway Labor Act. Chicago & Northwestern Ry. Co. v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971); International Association of Machinists v. Street, 367 U.S. 740, 772-773, 81 S.Ct. 1784, 1801, 6 L.Ed.2d 1141 (1961). See also cases cited in Conclusion No. 5. 7. Generally, the required elements to justify the issuance of a preliminary injunction are: 1) a substantial likelihood of success on the merits; 2) serious or irreparable injury in the absence of preliminary relief; 3) greater harm in the absence of preliminary relief than would be suffered by the opposing party if such relief is granted, and 4) the better service to the public interest. See generally Moore's Federal Practice ¶ 65.04[1], et seq. As further set out below, the facts of this case and the applicable standards of law dictate the issuance of a preliminary injunction. Plain tiff’s Application for a Preliminary Injunction is GRANTED. 8. The defendants contend that in an action for a preliminary injunction in a labor dispute it is not enough that plaintiff shows a “probability of success” on the merits. The defendants contend that the Norris-LaGuardia Act, 29 U.S.C. § 107, dictates that the appropriate standard is “clear and convincing” evidence or a “clear preponderance” of evidence. See: Chicago, R.I. & P.R.R. v. Switchmen's Union, 370 U.S. 936, 82 S.Ct. 1578, 8 L.Ed.2d 806 (1962). 9. The defendants have failed to cite and the Court’s research has failed to reveal any eases which directly support the defendants’ argument. The authority relied upon by the defendants is not persuasive. In the Switchmen’s case, the Second Circuit Court of Appeals was not called upon to reconcile § 7(a) of the Norris-LaGuardia Act (29 U.S.C. § 107(a)) with the “likelihood of success” standard or with the policies of the Railway Labor Act. The Court merely held that when disputants exhaust the mediation procedures required under the Railway Labor Act, a party seeking an injunction must clearly establish that an exception exists to the Norris-LaGuardia prohibition against enjoining peaceful strikes." }, { "docid": "13447855", "title": "", "text": "1980 temporary restraining order, by defendant ALP A, was required to be shown by clear and convincing evidence. A.H. Robins Co. v. Fadely, 299 F.2d 557, 559 (5th Cir. 1962). 16. The defendants contend that they cannot be adjudged in contempt of the October temporary restraining order, because that order should be vacated. The defendants argue that the October 18,1980 temporary restraining order should be vacated on the grounds that the TRO enjoined acts not specifically alleged in plaintiff’s original complaint. The defendant insists that the strict procedures required for the issuance of an injunction under Section 9 of the Norris-LaGuardia Act (29 U.S.C. § 109) should be applicable for an injunction under the Railway Labor Act. In short, the defendants argue that the Court’s Order of October 18, 1980 exceeded this Court’s limited jurisdiction to issue a labor dispute injunction under the Norris-LaGuardia Act. Such an argument is inconsistent with the purposes and objectives of the Railway Labor Act and is not supported by any dispositive case law. 17. The plaintiff’s Original Complaint alleged that the defendants had resorted to self-help efforts prior to exhausting the mediation procedures required by the Railway Labor Act. The plaintiff’s motion requesting the October 18, 1980 temporary restraining order and the affidavits submitted in support thereof, complained of the same illegality; only the methods used by the defendants to violate the Railway Labor Act had changed. Application of § 9 of the Norris-LaGuardia Act under these circumstances would not be a reconciliation between that act and the Railway Labor Act. Instead, it would reduce the injunctive relief available under the latter, to a nullity. Cf: Atlanta & West Point R. Co. v. United Transportation Union, 439 F.2d 73, 80 (5th Cir. 1971). Such a result is impermissible under controlling law. Virginian Railway Co. v. Systems Federation, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937). 18. As it has been previously stated, the purpose of injunctive relief under the Railway Labor Act is to prevent the parties in a labor dispute from resorting to self-help and disrupting the status quo" }, { "docid": "10929609", "title": "", "text": "has made it clear that competing provisions of the Norris-LaGuardia Act must yield to the demands of the RLA. Although the BMWE relies heavily upon the text of the Norris-LaGuardia Act and cases interpreting the Act, the union appears to ignore the Supreme Court’s statement that: the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved. Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Here, when read in light of the RLA, the Norris-LaGuardia Act provides no bar to the Court’s injunction. As this Court noted when it granted the plaintiffs’ request for a preliminary injunction, the purpose of the RLA is to prevent railroad strikes' and interruptions to interstate commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). The purpose of § 9 of the Norris-LaGuardia Act, on the other hand, is to “forbid blanket injunctions against labor unions, which are usually prohibitory in form, and to confine the injunction to the particular act complained of and found by the court.” Virginian Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 607, 81 L.Ed. 789 (1937). The Court finds that its injunction is sufficiently confined to the act complained of in the plaintiffs’ complaint because it only enjoins self help relating to the disputes arising from the § 6 notices served in the most recent round of collective bargaining. It is not the type of blanket injunction that is prohibited by the Norris-LaGuardia Act. To the extent that the injunction requires affirmative action on the part of the union, this affirmative action is required to further the RLA’s purpose of preventing interruptions in interstate commerce. The evidence presented to the Court in written materials and at the April 26, 1995, hearing established a sufficient basis" }, { "docid": "18346682", "title": "", "text": "civil action — (1) for injunctive, declaratory, or other relief relating to the enforcement, operation, execution, or interpretation of any provision or amendment made by this subtitle .... It is true that this does not speak with the pristine clarity of § 10(h) of the National Labor Relations Act, 29 U.S.C. § 160(h), see Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792 (1948); Building and Construction Trades Council v. Alpert, 302 F.2d 594 (1 Cir. 1962). The failure of Congress to make specific mention of the Norris-LaGuardia Act in the “notwithstanding” provision of § 1152(a) could well have been due to the fact that it wished as well to exclude the application of other laws, e.g., the provision of 28 U.S.C. § 1331 vesting the district courts with jurisdiction over cases arising under laws of the United States. Its omission of express reference is no reason for failing to read its general words as meaning what they unmistakably say. Here, as in the case of “minor disputes” under the Railway Labor Act, 45 U.S.C. § 151 et seq., there must be an accommodation between the two statutes with the balance favoring the later and more limited one. Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 39-40, 77 S.Ct. 635, 639-640, 1 L.Ed.2d 622 (1957); Chicago & N. W. Ry. Co. v. United Transportation Union, 402 U.S. 570, 582-83 n.18, 91 S.Ct. 1731, 1737-38 n.18, 29 L.Ed.2d 187 (1971). The recital of the “public policy of the United States” in § 2 of the Norris-LaGuardia Act, 29 U.S.C. § 102, by which the courts are directed to be guided in interpreting the act and determining their jurisdiction and authority, shows how far removed the purpose of that statute is from a case where Congress itself has set labor policy for a single railroad with respect to a particular labor problem and vested a" }, { "docid": "12908522", "title": "", "text": "working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof. 45 U.S.C. § 152 First (1982); see Chicago & North Western Ry. Co. v. United Transp. Union, 402 U.S. 570, 575-77, 91 S.Ct. 1731, 1734r-35, 29 L.Ed.2d 187 (1971) (RLA § 2 First expresses legal mandate rather than policy exhortation). In order to carry out this purpose, the RLA establishes elaborate procedures for resolving disputes in the industries to which it applies. The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1982 & Supp. IV 1986), is in tension with the RLA. Section 1 of the Norris-LaGuardia Act provides: No court of the United States ... shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of [the Norris-LaGuardia Act]; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in [the Norris-La-Guardia Act]. 29 U.S.C. § 101 (1982). The Supreme Court has accommodated the competing demands of the RLA and the Norris-LaGuardia Act by holding that the latter “ ‘does not deprive the federal court of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act.’ ” Burlington Northern R.R. Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 445, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987) (quoting International Ass’n of Machinists v. Street, 367 U.S. 740, 772, 81 S.Ct. 1784, 1801, 6 L.Ed.2d 1141 (1961)). As the Court more fully stated in Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957): We hold that the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in" }, { "docid": "14693186", "title": "", "text": "basic policy against the injunction of activities of labor unions.” International Ass’n of Machinists v. Street, 367 U.S. 740, 772, 81 S.Ct. 1784, 1802, 6 L.Ed.2d 1141 (1961). Enacted in 1932, the Act was intended to curtail widespread use of equitable relief by federal courts to prevent strikes, thus depriving unions of perhaps their most formidable weapon. See Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 107 S.Ct. 1841, 1847, 95 L.Ed.2d 381 (1987). Section 1 of the Act denies federal courts jurisdiction to issue an injunction in any case relating to a labor dispute. Section 4 lists specific acts, including picketing, that may not be enjoined. See 29 U.S.C. § 104. The Supreme Court has held, however, that “[i]n certain limited circumstances, the Norris-LaGuardia Act does not prevent a court from enjoining violations of the specific mandate of another labor statute.” Burlington Northern, 107 S.Ct. at 1850. In particular, the Act’s “basic policy” against equitable relief “does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act.” International Ass’n of Machinists v. Street, 367 U.S. at 772, 81 S.Ct. at 1802 (citing Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937)). The RLA was enacted in 1926 following decades of often-violent labor unrest in the transportation industry that disrupted the national economy. It is designed to deter strikes in this critical economic sector by requiring rail and air carriers and certified labor representatives to participate in protracted rounds of “negotiation, mediation, voluntary arbitration, and conciliation” before resorting to self-help. Detroit & Toledo Shore Line R.R. v. United Transportation Union, 396 U.S. 142, 148-49, 90 S.Ct. 294, 298-99, 24 L.Ed.2d 325 (1969). The Supreme Court has upheld the issuance of injunctions to prevent violations of various RLA provisions. See, e.g., Detroit & Toledo Shore Line R.R., supra (status quo requirement pending exhaustion of “major dispute” resolution procedures); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957) (duty to" }, { "docid": "6141520", "title": "", "text": "operations for the purpose of forcing recognition. On this appeal from that order, Local 851 does not challenge the district court’s findings of fact. Rather, it is the Union’s position that Congress did not intend to prohibit recognitional picketing in the circumstances of this case. It argues that, even if the facts are as the district court found, it has violated no command of the Railway Labor Act and therefore the Norris-LaGuardia Act, 29 U.S.C. § 104, prohibits the injunction granted herein. Title I of the Railway Labor Act was adopted in 1926 to replace Title III of the Transportation Act of 1920. The 1926 Act was drafted by a team composed of representatives of both management and labor, and “came on the statute books through agreement between the railroads and the railroad unions . . . .” International Ass’n of Machinists v. Street, 367 U.S. 740, 758, 81 S.Ct. 1784, 1794, 6 L.Ed.2d 1141 (1961); see Chicago & N. W. Ry. v. United Transportation Union, 402 U.S. 570, 576, 91 S.Ct. 1731, 1735, 29 L.Ed.2d 187 (1971). The draftsmen set forth in section 2, First the general obligation of both the carriers and their employees to attempt in good faith to resolve all disputes without resort to economic coercion: “It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” This duty is “the heart of the Railway Labor Act,” Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969), and is a legally enforceable obligation, rather than a “mere statement of policy or exhortation,” Chicago & N. W. Ry. v. United Transportation Union, supra, 402 U.S. at 577, 91 S.Ct. at 1735. The Act provided" }, { "docid": "18346683", "title": "", "text": "case of “minor disputes” under the Railway Labor Act, 45 U.S.C. § 151 et seq., there must be an accommodation between the two statutes with the balance favoring the later and more limited one. Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789 (1937); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 39-40, 77 S.Ct. 635, 639-640, 1 L.Ed.2d 622 (1957); Chicago & N. W. Ry. Co. v. United Transportation Union, 402 U.S. 570, 582-83 n.18, 91 S.Ct. 1731, 1737-38 n.18, 29 L.Ed.2d 187 (1971). The recital of the “public policy of the United States” in § 2 of the Norris-LaGuardia Act, 29 U.S.C. § 102, by which the courts are directed to be guided in interpreting the act and determining their jurisdiction and authority, shows how far removed the purpose of that statute is from a case where Congress itself has set labor policy for a single railroad with respect to a particular labor problem and vested a special court of three judges with authority to enforce the Congressional decision by granting injunctive relief. Compare Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 250-53, 90 S.Ct. 1583, 1592-93, 26 L.Ed.2d 199 (1970). Although we thus conclude that the Norris-LaGuardia Act does not bar the injunction sought by Conrail, an injunction should not issue unless there is “some cognizable danger of recurrent violation”. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). When the preliminary injunction was issued in No, 82-7, such a danger plainly existed. Conrail’s complaint alleged (Appendix B) that UTU’s president had authorized subordinate UTU general committees to conduct strike votes in connection with Conrad’s implementation of § 702; that certain such committees had conducted such votes; and that they and certain UTU local officers had informed Conrail and the general public that a work stoppage would be conducted. Employees would report to work on February 22,1982, and ascertain the crew or work assignments which they had received. If a" } ]

[ { "docid": "21064027", "title": "", "text": "testimony was impeached by a federal agent, who testified that Townsend had told him earlier, though not under oath, that the gun was not hers, and also by the testimony of a Danville police officer who testified that, on the morning of the search, Townsend told him that the gun was not hers and that she had never seen it before. The Danville officer did not, however, ask Townsend whether the gun belonged to Wilson. Townsend’s sister and a girlfriend also testified. The jury might have elected, but didn’t, to believe Schachte, instead of the government’s crime lab witnesses. And even crediting the crime lab witnesses, the jury might still have found, quite credibly, that the evidence was insufficient to prove possession. But the jury convicted. The most incriminating evidence of possession was undoubtedly the fingerprint. There were explanations available, fully consistent with innocence, which would have explained the print. Perhaps Wilson brushed his hand against the gun one day while making the bed. Merely touching would not be possessing it. Perhaps he momentarily grabbed the gun from the children, after finding them playing with it. The possibilities are endless. But after five-and-a-half hours of deliberation no juror found any of these possibilities sufficient to create a reasonable doubt as to Wilson’s guilt, and we conclude that a jury could, within the province of rationality, convict Wilson based on the evidence. The gun was found in an apartment where Wilson sometimes spent the night and where two of his children lived with their mother, who had been his girlfriend. The gun had a print on it and the jury could reasonably conclude that the print was Wilson’s. The next step in the chain of proof is the most tenuous but still tenable. A rational jury could determine, on the basis of the evidence and beyond a reasonable doubt, that any gun in Townsend’s apartment with Wilson’s print on it had been “possessed” by Wilson. It was not improbable that objects found there might be his. Indeed, an already convicted felon might be wise to keep a gun at his girlfriend’s" } ]

[ { "docid": "22567002", "title": "", "text": "a distinct “innocent possession” defense, two requirements would have to be satisfied to trigger it: “The record must reveal that (1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory — i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible. In particular, a defendant’s actions must demonstrate both that he had the intent to turn the weapon over to the police and that he was pursuing such an intent with immediacy and through a reasonable course of conduct.” Hendricks, 319 F.3d at 1007 (quoting United States v. Mason, 233 F.3d 619, 624 (D.C.Cir.2000)). Where a Section 922(g) defendant does not immediately seek to turn a firearm over to law enforcement, an innocent possession instruction is not warranted. See Hendricks, 319 F.3d at 1007-08. Even if we were to recognize an innocent possession defense, Defendant’s proffered facts come nowhere close to the hypothetical scenarios to which courts have found that an innocent possession defense might apply. In United States v. Wilson, 922 F.2d 1336 (7th Cir.1991), for example, we mentioned in dicta that an innocent possession instruction might be warranted if a felon momentarily handles a gun while taking it away from children who were playing with it. Id. at 1338-39. Similarly, the Second Circuit has noted that such an instruction might be appropriate where “a felon who notices ‘a police officer’s pistol slip to the floor while the officer was seated at a lunch counter,’ picks up the weapon, and immediately returns it to the officer.” United States v. Williams, 389 F.3d 402, 405 (2d Cir.2004) (quoting United States v. Paul, 110 F.3d 869, 872 (2d Cir.1997)); see also United States v. Mason, 233 F.3d 619, 624-25 (D.C.Cir.2001) (after observing that “[t]he innocent possession defense to a § 922(g)(1) charge is necessarily narrow,” finding that an innocent possession instruction should be given with respect to a defendant who, upon finding a weapon, drove directly to deliver" }, { "docid": "14055466", "title": "", "text": "a firearm under § 922(g) are identical (stating that possession is the ability to control) and specifically cross-reference each other. See Fed.Crim. Jury Instructions of the Seventh Circuit, Nos. 841(a)(1), 922(g) (1999). The court says we do not address whether touching a gun mandates the same result as holding one. Slip op. at 6. This suggests a vague distinction, confusing to apply. If a felon “inspects” or “handles” or “moves” a gun, did he in every circumstance “possess” it as a matter of law? The court does not succeed in stating a “bright-line” rule. I do, however, concur in the result reached by the court. Lane’s holding the gun to inspect it cannot be disassociated from his negotiation and his decision to make the purchase, albeit on behalf of someone else. I can agree that his handling of the gun was an incident of his purchase and an assertion of physical control. Lane argues that the district court erred by refusing to instruct the jury that momentarily holding the gun does not necessarily constitute possession. But under these circumstances, the instructions com plained of were not prejudicial because Lane asserted physical control over the gun." }, { "docid": "14055452", "title": "", "text": "he need only pull the trigger, an act which can be completed in a split second and which is controlled and influenced by nothing more than the defendant’s whim. Lane protests that the circumstances surrounding his inspection of the gun show that he did not possess it. He points out that he was merely inspecting the gun and that when he held the gun it belonged to Bowen. But none of these-circumstances bear on Lane’s ability to shoot the gun. Felons handling guns, unlike defendants who have touched drugs, do not need recognition of their authority or any extra element to obtain the ability to shoot the gun. Lane had just as much control over the gun when he inspected it while it belonged to Bowen as he would have if he as the gun’s owner took aim at a rabbit. Because a defendant can shoot a gun so quickly and easily once he holds it in his hands, we conclude that evidence showing that a felon held a gun is by itself a “factor indicating that the defendant had the ability to exercise direct control over the [firearm].” The distinction between holding a gun and obtaining control over a gun as required to prove possession is academic. We do not address whether touching a gun as opposed to holding a gun mandates the same result. Lane asserts that in United States v. Wilson, 922 F.2d 1336, 1338-39 (7th Cir.1991) we implicitly decided that momentarily holding a gun does not constitute possession as a matter of law. In dicta, we offered as an example of “innocent contact” between a felon and a gun the scenario of a felon momentarily handling a gun while taking it away from children who were playing with it. We do not decide whether this example is correct because it may implicate a defense not relevant to Lane’s case. But as a general proposition of law, this statement was dicta and put forth without any reasoning to justify it and we decline to proceed down this path. Our conclusion is further bolstered because it is consistent" }, { "docid": "12232663", "title": "", "text": "family.” Id. On appeal, we held that these statements were not admissible to show Lee’s knowledge: Lee’s trial ... was not about whether he knew that he had a rifle in the back seat of his Jeep. There was no question of accident or mistake. Rather, Lee’s defense was simply that there was no rifle in his Jeep and that the rifle recovered at the Apartments was not his. ... Lee has not put knowledge at issue. Lee is not arguing that he did not know there was a rifle in his back seat. His argument is a straightforward denial that any gun was there. Id. at 186-87. Because Lee’s knowledge was not at issue in the case, we concluded that knowledge was not a proper Rule 404(b) purpose for admitting the statements. Id.; see also Lee, 612 F.3d at 200 (Rendell, J., dissenting) (agreeing with majority’s conclusion that “the knowledge and intent rationales for admitting the statements [about guns] do not hold water”). Our sister circuits that have considered this question agree that knowledge is generally not at issue in a prosecution under § 922(g)(1) where the government claims the defendant actually possessed the gun. In United States v. Linares, the defendant was prosecuted for being a felon in possession of a firearm based on three eye witness accounts that he fired a gun from the window of his car and later tossed it away. 367 F.3d at 944. Over objection, the district court permitted the government to introduce evidence of Linares’s prior conviction for unlawful firearm possession in order to show his “intent, knowledge, and absence of mistake.” Id. at 946. On appeal, the D.C. Circuit concluded the evidence was erroneously admitted. The court explained: “If the jury believed these eyewitnesses, then Linares possessed the gun knowingly; if it did not, then it should have acquitted based on the government’s failure to prove possession rather than its failure to prove knowledge.” Id. Left with this disjunctive choice between actual possession or no possession, the court held the evidence was inadmissible because “no reasonable jury could have concluded that" }, { "docid": "14055464", "title": "", "text": "at 1052, so the constitutional nature of Lane’s issue gives us no particular pause. Affirmed. FAIRCHILD, Circuit Judge, concurring. With all respect, I do not agree with the unqualified proposition that “holding a firearm establishes possession as a matter of law” in the context of § 922. I think we must recognize that there may be circumstances in which a jury should find that momentary holding would not constitute forbidden possession. As we noted in United States v. Wilson, 922 F.2d 1336, 1338 (7th Cir.1991), not every instance of “holding” or “touching” necessarily demonstrates “possession.” Suppose a felon looking for her keys discovers them underneath her husband’s handgun on the kitchen counter. In order to get her keys, the woman lifts the gun, pushes it aside, and grabs her keys. In this scenario, even though she picked up the gun, she was not asserting control— momentarily holding the gun was merely incidental to obtaining her keys. Should this woman be guilty of possession under § 922(g)? Or consider the hypothetical considered by this court in Wilson in which a felon snatches a gun from the grasp of a child to protect the child. See id. Should he be guilty of possession under § 922(g)? Or suppose a disabled person drops his gun and a felon momentarily handles it while restoring it to him? These examples, among an endless array of instances of momentarily holding a gun without asserting control, see id., demonstrate that the distinction between “holding” a gun and “obtaining control” over it to establish possession is hardly “academic.” Slip op. at 718-19. Under our precedents, forbidden possession is demonstrated if a person has physical control over an object. United States v. Walls, 225 F.3d 858, 864 (7th Cir.2000); United States v. Kitchen, 57 F.3d 516, 520 (7th Cir.1995) [It seems to me that there must be an assertion or exercise of control as well as an ability]. Until today we have not limited that standard to the possession of drugs. Indeed, this circuit’s pattern jury instructions defining “possession” of drugs under 21 U.S.C. § 841(a)(1) and “possession” of" }, { "docid": "14055447", "title": "", "text": "a sentence between 77 and 96 months rather than a range of 41 to 51 months. II. Discussion A. Possession Standard Lane first contends that the district court misunderstood the legal standard of possession and as a result, wrongly instructed the jury and prevented Lane from presenting a viable trial theory. To prove that Lane was a felon in possession of a firearm, the government was required to show that Lane (1) had been convicted of a crime punishable by a prison term exceeding one year and (2) knowingly possessed a firearm (3) that traveled in or affected interstate commerce. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); United States v. Phillips, 239 F.3d 829, 847 (7th Cir.2001). We review Lane’s legal challenge de novo. See United States v. Stott, 245 F.3d 890, 904 (7th Cir.2001). At trial, the government agreed to focus only on the incidents at the Twin Oaks Tavern and not the gun’s presence in Lane’s garage. We likewise limit our inquiry. At trial, the judge held that momentarily handling a gun satisfied the legal definition of “possession” as a matter of law. While possession can be actual or constructive, see United States v. Kitchen, 57 F.3d 516, 520 (7th Cir.1995), the government has pressed the actual possession theory. Actual possession occurs when a defendant “knowingly has direct physical control over a thing at a given time.” United States v. Walls, 225 F.3d 858, 864 (7th Cir.2000) (citing Kitchen, 57 F.3d at 520). Lane contends that although it is possible for physical contact to constitute possession, it does not do so as a matter of law. According to Lane, he was entitled to argue that the gun was not under his control when he held it because he was merely inspecting a gun owned by someone else. Lane relies heavily on Kitchen, 57 F.3d at 518-23, a drug case, to bolster his reasoning and to provide an example of a situation when momentarily holding contraband did not prove control or possession. In Kitchen, the defendant appealed his conviction for possession of cocaine with intent to distribute. See 57 F.3d" }, { "docid": "16374458", "title": "", "text": "the courts use for determining guilt of that crime.) To decide whether a person who has a felony record possesses a gun, therefore, it is not enough to ask whether the gun is in his hand or his pocket or even under his pillow or in his desk drawer. Had Rawlings said to one of his coconspirators — “You hold this gun that I’ve bought but never touched, because I’m a felon and I don’t want to be charged with being a felon in possession, if we are caught” — this would not negate his possession of it. To fix the outer limits of the concept of possession in the criminal law, courts employ the notion of “constructive possession,” accurately defined in the defendant’s proposed instruction that was not given as one’s having (and knowing one has) “the power and the intention at a given time to exercise dominion and control over the firearm, either directly or through others.” See, e.g., United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003); United States v. Phillips, 239 F.3d 829, 847 (7th Cir.2001); United States v. Hardin, 248 F.3d 489, 498 (6th Cir.2001). (What “dominion” adds to “control,” especially indirect control, is unclear; probably it adds nothing.) Thus a drug lord who directs his enforcers to arm themselves is, if they do so, a constructive possessor of the arms. United States v. Lloyd, 71 F.3d 1256, 1267 (7th Cir.1995); United States v. McAnderson, 914 F.2d 934, 948 (7th Cir.1990); United States v. Dhinsa, 243 F.3d 635, 677 (2d Cir.2001); cf. United States v. Wight, 968 F.2d 1393, 1398 (1st Cir.1992). He is acting through agents, just as in the case we put of the felon who asks his companion to hold his gun for him. We can tie these cases to the underlying statutory purpose of felon-in-possession laws by noticing that the felon is no less dangerous when he arms his associates in a criminal endeavor than when he arms himself. Alternatively these could be considered cases of joint possession, which is normally treated as a subset of constructive possession, United" }, { "docid": "22567003", "title": "", "text": "hypothetical scenarios to which courts have found that an innocent possession defense might apply. In United States v. Wilson, 922 F.2d 1336 (7th Cir.1991), for example, we mentioned in dicta that an innocent possession instruction might be warranted if a felon momentarily handles a gun while taking it away from children who were playing with it. Id. at 1338-39. Similarly, the Second Circuit has noted that such an instruction might be appropriate where “a felon who notices ‘a police officer’s pistol slip to the floor while the officer was seated at a lunch counter,’ picks up the weapon, and immediately returns it to the officer.” United States v. Williams, 389 F.3d 402, 405 (2d Cir.2004) (quoting United States v. Paul, 110 F.3d 869, 872 (2d Cir.1997)); see also United States v. Mason, 233 F.3d 619, 624-25 (D.C.Cir.2001) (after observing that “[t]he innocent possession defense to a § 922(g)(1) charge is necessarily narrow,” finding that an innocent possession instruction should be given with respect to a defendant who, upon finding a weapon, drove directly to deliver it to a law enforcement officer without attempting to hide it). The facts of this case do not fall into either of these categories. Initially, Defendant’s contention that he planned to have Eaton find someone else to return the firearm is undermined by the magistrate judge’s finding that Eaton “was genuinely shocked [when she saw the gun in the computer case], proclaiming that she had had no idea that the gun had been in there.” (Sept. 3, 2008, Report & Recommendation at 3.) Furthermore, Defendant’s proffered version of events would not entitle him to an innocent possession defense because he did not seek to immediately turn the gun over to law enforcement. Instead, he purportedly asked Eaton, her self a convicted felon, to find someone else to turn the gun over to law enforcement. Accordingly, the district court properly declined to give an innocent possession jury instruction. III. U.S.S.G. § 5K2.11 Finally, Defendant argues that his below-guidelines sentence was unreasonable because his “possession of the firearm in this case is not related to the harm" }, { "docid": "14055453", "title": "", "text": "indicating that the defendant had the ability to exercise direct control over the [firearm].” The distinction between holding a gun and obtaining control over a gun as required to prove possession is academic. We do not address whether touching a gun as opposed to holding a gun mandates the same result. Lane asserts that in United States v. Wilson, 922 F.2d 1336, 1338-39 (7th Cir.1991) we implicitly decided that momentarily holding a gun does not constitute possession as a matter of law. In dicta, we offered as an example of “innocent contact” between a felon and a gun the scenario of a felon momentarily handling a gun while taking it away from children who were playing with it. We do not decide whether this example is correct because it may implicate a defense not relevant to Lane’s case. But as a general proposition of law, this statement was dicta and put forth without any reasoning to justify it and we decline to proceed down this path. Our conclusion is further bolstered because it is consistent with holdings of two sister circuits. In United States v. Adkins, 196 F.3d 1112, 1115, 1117-18 (10th Cir.1999), the Tenth Circuit held that a convicted felon violated 18 U.S.C. § 922(g)(1) when, in his friend’s presence, he carried the gun she had just purchased from the gun store to her car. Explaining the law, the court stated that once it was established that a felon held a gun even “for a mere second or two,” the felon was guilty of possessing a firearm unless he truly did not know that the item was a firearm. See id. In United States v. Scales, 599 F.2d 78, 80 (5th Cir.1979), the defendant was a convicted felon who purchased a gun for his wife to use to defend herself. The defendant advanced the theory that he never actually possessed the gun because he never intended to exercise control over it himself, but only to deliver it to his wife for her use. See id. He requested jury instructions stating that possession required actual control, care, and management of" }, { "docid": "14055463", "title": "", "text": "that a defendant who attempted to mount a collateral attack on his guilty plea because the judge purportedly failed to conduct an adequate Rule 11(d) colloquy waived his right to do so by failing to pursue the issue on direct appeal). Lane was aware of his Sixth Amendment issue when he signed the plea agreement; thus he had an opportunity to appeal and freely waived it. We make an exception to the waiver rule for parties who can show that they had cause for failing to appeal directly and that they suffered prejudice from this omission. See Wainwright v. Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Johnson, 838 F.2d at 202-05. Lane does not meet this standard in part because he cannot show cause. Lane knew about the purported Sixth Amendment violation when he signed the February 1996 plea agreement and freely chose, on the advice of his lawyer, to waive his right to appeal. We routinely allow defendants to waive constitutional rights in plea agreements, see Behrman, 235 F.3d at 1052, so the constitutional nature of Lane’s issue gives us no particular pause. Affirmed. FAIRCHILD, Circuit Judge, concurring. With all respect, I do not agree with the unqualified proposition that “holding a firearm establishes possession as a matter of law” in the context of § 922. I think we must recognize that there may be circumstances in which a jury should find that momentary holding would not constitute forbidden possession. As we noted in United States v. Wilson, 922 F.2d 1336, 1338 (7th Cir.1991), not every instance of “holding” or “touching” necessarily demonstrates “possession.” Suppose a felon looking for her keys discovers them underneath her husband’s handgun on the kitchen counter. In order to get her keys, the woman lifts the gun, pushes it aside, and grabs her keys. In this scenario, even though she picked up the gun, she was not asserting control— momentarily holding the gun was merely incidental to obtaining her keys. Should this woman be guilty of possession under § 922(g)? Or consider the hypothetical considered by this court in" }, { "docid": "14055448", "title": "", "text": "legal definition of “possession” as a matter of law. While possession can be actual or constructive, see United States v. Kitchen, 57 F.3d 516, 520 (7th Cir.1995), the government has pressed the actual possession theory. Actual possession occurs when a defendant “knowingly has direct physical control over a thing at a given time.” United States v. Walls, 225 F.3d 858, 864 (7th Cir.2000) (citing Kitchen, 57 F.3d at 520). Lane contends that although it is possible for physical contact to constitute possession, it does not do so as a matter of law. According to Lane, he was entitled to argue that the gun was not under his control when he held it because he was merely inspecting a gun owned by someone else. Lane relies heavily on Kitchen, 57 F.3d at 518-23, a drug case, to bolster his reasoning and to provide an example of a situation when momentarily holding contraband did not prove control or possession. In Kitchen, the defendant appealed his conviction for possession of cocaine with intent to distribute. See 57 F.3d at 518-19. Kitchen’s conviction stemmed from a would-be drug transaction, when Kitchen, a drug buyer, met undercover federal agents to purchase cocaine from them. See id. at 519. The agents showed Kitchen the cocaine, which Kitchen picked up and inspected for two or three seconds. See id. However, before Kitchen could complete the transaction, the federal agents arrested him. See id. Kitchen contested his conviction arguing that he never possessed the drugs despite briefly handling and inspecting them. We reversed the conviction, reasoning that Kitchen’s momentary handling of the cocaine did not constitute possession in the context of the 21 U.S.C. § 841(a)(1) charge because Kitchen never exhibited assent to the drug transaction and therefore never demonstrated that he had the authority to exercise control over the cocaine. See id. at 523. We explained that “we require ... some factor indicating that [the defendant] had the authority or the ability to exercise control over the contraband.” Id. at 523. In Kitchen we also made clear that “[w]e do not attempt to use the present case" }, { "docid": "12232660", "title": "", "text": "that the defendant exercised direct physical control over the weapon (actual possession), or (2) by showing that he exercised dominion or control over the area in which the weapon was found (constructive possession). See United States v. Jones, 484 F.3d 783, 788 (5th Cir.2007). At trial, the prosecution offered evidence that two detectives directly observed Caldwell physically remove the gun from his waistband and hold it behind Tigney’s back. A third detective testified that he observed conduct consistent with this version of events. There was no con tention that Caldwell exercised dominion over an area where the gun was later found. Rather, the Government’s theory was purely one of actual possession, and the jury was accordingly instructed only on this theory. App. 555 (instructing the jury that “[t]he term possess means to exercise authority, dominion or control over an object,” and making no mention of control over an area where an object was found). Because the Government proceeded solely on a theory of actual possession, we hold that Caldwell’s knowledge was not at issue in the case. Although 18 U.S.C. § 922(g)(1) criminalizes the “knowing” possession of a firearm by a convicted felon, a defendant’s knowledge is almost never a material issue when the government relies exclusively on a theory of actual possession. Indeed, absent unusual circumstances (such as when a defendant claims he did not realize the object in his hand was a gun), the knowledge element in a felon-in-possession case will necessarily be satisfied if the jury finds the defendant physically possessed the firearm. See United States v. Linares, 367 F.3d 941, 946-47 (D.C.Cir.2004) (stating that no reasonable jury in an actual possession case would acquit a defendant “based on the belief that the government proved possession but failed to prove knowledge”). This is true here, and Caldwell conceded as much. His counsel repeatedly noted that if the jury found that Caldwell possessed the gun, then it must also find that his possession was knowing. In United States v. Lee, 612 F.3d 170 (3d Cir.2010), we recognized that, in a trial for a violation of § 922(g)(1), knowledge" }, { "docid": "6501169", "title": "", "text": "test. With respect to the second prong, Conley claims that the guns were used as props for staged photographs, an act which differs significantly from the Government’s claim that Conley exercised constructive possession over six functioning firearms in the Conley residence. Conley further contends that the pictures are irrelevant because they demonstrate nothing more than the fact that he momentarily possessed the weapons. As for the fourth prong, Conley states that the probative value of the photographs was substantially outweighed by the potential that the jury would conclude that he was a “gun-toting lawbreaker” and, thereafter, convict him based on irrational prejudice rather than the evidence presented at trial. We disagree with each of Conley’s arguments. Minor or insubstantial differences in the type of conduct or charge at issue fail to establish that the conduct is dissimilar. United States v. Long, 86 F.3d 81, 84 (7th Cir.1996). Guns do not belong in the hands of felons. Our ease law makes clear that an individual convicted of a felony violates § 922(g)(1) whenever he is in possession and physical control of a weapon for more than an “academic” period of time, United States v. Lane, 267 F.3d 715, 718 (7th Cir.2001), even if he lacks the specific intent to use the weapon for criminal purposes. Id. at 720. In addition, we have repeatedly held that evidence is unfairly prejudicial only if it will “induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.” United States v. Pulido, 69 F.3d 192, 201 (7th Cir.1995). In this case, because the photos showed Conley in actual possession of a bevy of weapons, we are convinced that the evidence was relevant to the issue of whether Conley remained in constructive possession of other similar weapons while they remained in his home or on his property. The determination of the proper weight of such evidence was left to the jury’s sound discretion, after hearing the court’s instructions regarding the applicable law and evaluating the arguments of both the Government and the defendant at trial. Given" }, { "docid": "14055454", "title": "", "text": "with holdings of two sister circuits. In United States v. Adkins, 196 F.3d 1112, 1115, 1117-18 (10th Cir.1999), the Tenth Circuit held that a convicted felon violated 18 U.S.C. § 922(g)(1) when, in his friend’s presence, he carried the gun she had just purchased from the gun store to her car. Explaining the law, the court stated that once it was established that a felon held a gun even “for a mere second or two,” the felon was guilty of possessing a firearm unless he truly did not know that the item was a firearm. See id. In United States v. Scales, 599 F.2d 78, 80 (5th Cir.1979), the defendant was a convicted felon who purchased a gun for his wife to use to defend herself. The defendant advanced the theory that he never actually possessed the gun because he never intended to exercise control over it himself, but only to deliver it to his wife for her use. See id. He requested jury instructions stating that possession required actual control, care, and management of the gun, not passing control, fleeting and shadowy in its nature. The court held that the district court correctly refused to issue this instruction. See id. at 81. These cases are virtually indistinguishable from Lane’s. For the reasons above, we find that holding a firearm establishes possession as a matter of law in the context of a charge under 18 U.S.C. § 922(g)(1) and that neither of the district court’s challenged rulings were erroneous. This holding depends heavily on both the purpose of the law in question and on the physical nature of guns. For these reasons, we do not intend to make a rule that is applicable to other statutes or physical situations without analysis specific to both. B. Motive Testimony The parties’ struggle over the definition of possession spills into Lane’s next argument, that the judge abused her discretion by striking as irrelevant testimony about Lane’s motive for purchasing the gun. We review the district court’s decision to exclude evidence, such as the motive testimony at issue here, for an abuse of discretion." }, { "docid": "399594", "title": "", "text": "was potentially available to persons who guilty of violating, inter alia, §§ 922(a)(6) as well as 922(g)(1). We are constrained here to clarify any perceived murkiness in our jurisprudence on the six-level reduction provisions of guidelines § 2K2.1(b). Some confusion might result if dicta in United States v. Pope, is read in pari materiae with dicta in United States v. Buss, both of which are firearms cases involving defendants who were convicted felons and thus incapable of lawfully obtaining or possessing firearms. The defendant in Pope was charged not only with being a convicted felon in possession of an otherwise lawful firearm, in violation of 18 U.S.C. § 922(g), but also with possession of a silencer, a device which, if unregistered (as in Pope’s case), is not susceptible of being lawfully obtained or possessed without violating 26 U.S.C. § 5861(d), even by a citizen who is not a convicted felon and therefore not laboring under the general proscription of felons possessing firearms. Pope insisted that he was entitled to a decrease in offense level under the guidelines because he acquired the firearm and the unregistered silencer for purposes of adding them to his gun collection. In rejecting Pope’s contention, this court held that “only a lawful collection of guns can be considered as a mitigating factor under [the applicable guideline section]” ; or, stated another way, that “as a matter of law only a gun collection that is not itself unlawful can be used to reduce an offense level under [the applicable guideline].” From the fact situation in Pope and those two quotations, it is clear that the gravamen of the holding is that, irrespective of the quality of the gun collector (e.g., a felon vis-a-vis a legally competent, uncon-victed citizen), the fact that the collection was itself unlawful by virtue of the inclusion of the unregistered silencer prevented Pope from obtaining the 6-level reduction. Implicit in the Pope holding is the converse conclusion that if the collection in question had not itself been an unlawful one, Pope might have been eligible for the 6-level reduction for obtaining or possessing" }, { "docid": "14055451", "title": "", "text": "of a factor beyond mere physical contact to show that the defendant exerted authority or the ability to physically control the drugs. In contrast to drugs, it is much easier to obtain control and therefore possession of a gun in the context of 18 U.S.C. § 922(g)(1). Congress originally passed this law as the Federal Firearms Act of 1938 “to ‘prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind.’ ” Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 46 L.Ed.2d 450 (1975) (quoting S.Rep. No. 1189, at 33 (1937)). Throughout this Act’s subsequent history, this purpose has remained constant. See S.Rep. No. 90-1501, at 22 (1968); H.R.Rep. No. 99-495, at 1-3. From the purpose of the Act, it is reasonable to infer that Congress intended to prohibit felons from exercising any physical control over a gun. Physical control over a gun is remarkably easy to effect. Once the gun is in the defendant’s hands he need only pull the trigger, an act which can be completed in a split second and which is controlled and influenced by nothing more than the defendant’s whim. Lane protests that the circumstances surrounding his inspection of the gun show that he did not possess it. He points out that he was merely inspecting the gun and that when he held the gun it belonged to Bowen. But none of these-circumstances bear on Lane’s ability to shoot the gun. Felons handling guns, unlike defendants who have touched drugs, do not need recognition of their authority or any extra element to obtain the ability to shoot the gun. Lane had just as much control over the gun when he inspected it while it belonged to Bowen as he would have if he as the gun’s owner took aim at a rabbit. Because a defendant can shoot a gun so quickly and easily once he holds it in his hands, we conclude that evidence showing that a felon held a gun is by itself a “factor" }, { "docid": "14055465", "title": "", "text": "Wilson in which a felon snatches a gun from the grasp of a child to protect the child. See id. Should he be guilty of possession under § 922(g)? Or suppose a disabled person drops his gun and a felon momentarily handles it while restoring it to him? These examples, among an endless array of instances of momentarily holding a gun without asserting control, see id., demonstrate that the distinction between “holding” a gun and “obtaining control” over it to establish possession is hardly “academic.” Slip op. at 718-19. Under our precedents, forbidden possession is demonstrated if a person has physical control over an object. United States v. Walls, 225 F.3d 858, 864 (7th Cir.2000); United States v. Kitchen, 57 F.3d 516, 520 (7th Cir.1995) [It seems to me that there must be an assertion or exercise of control as well as an ability]. Until today we have not limited that standard to the possession of drugs. Indeed, this circuit’s pattern jury instructions defining “possession” of drugs under 21 U.S.C. § 841(a)(1) and “possession” of a firearm under § 922(g) are identical (stating that possession is the ability to control) and specifically cross-reference each other. See Fed.Crim. Jury Instructions of the Seventh Circuit, Nos. 841(a)(1), 922(g) (1999). The court says we do not address whether touching a gun mandates the same result as holding one. Slip op. at 6. This suggests a vague distinction, confusing to apply. If a felon “inspects” or “handles” or “moves” a gun, did he in every circumstance “possess” it as a matter of law? The court does not succeed in stating a “bright-line” rule. I do, however, concur in the result reached by the court. Lane’s holding the gun to inspect it cannot be disassociated from his negotiation and his decision to make the purchase, albeit on behalf of someone else. I can agree that his handling of the gun was an incident of his purchase and an assertion of physical control. Lane argues that the district court erred by refusing to instruct the jury that momentarily holding the gun does not necessarily constitute possession." }, { "docid": "16374457", "title": "", "text": "or the other unarmed coconspirator urged the two armed coconspirators to toss their guns out of the car, and they did so, though reluctantly. This was the entire evidence that Rawl-ings possessed a firearm. No instruction was given regarding the meaning of “possession,” except that it had to be knowing. Both parties had prepared and submitted to the judge instructions on constructive possession, but neither instruction was given, apparently through inadvertence. “Possession,” a concept much elaborated since its introduction into Western law by the Romans, has never just meant clasping something in your hands. The owner of an automobile possesses it even when it is parked in a garage and he is miles away. A tenant possesses the apartment he has rented even when he is away on a trip. A thief has custody of the goods he steals, but the owner retains possession. (That is, the thief does not have the rights of a possessor; he still has the liabilities, for example as a felon in possession under the test, set forth below, that the courts use for determining guilt of that crime.) To decide whether a person who has a felony record possesses a gun, therefore, it is not enough to ask whether the gun is in his hand or his pocket or even under his pillow or in his desk drawer. Had Rawlings said to one of his coconspirators — “You hold this gun that I’ve bought but never touched, because I’m a felon and I don’t want to be charged with being a felon in possession, if we are caught” — this would not negate his possession of it. To fix the outer limits of the concept of possession in the criminal law, courts employ the notion of “constructive possession,” accurately defined in the defendant’s proposed instruction that was not given as one’s having (and knowing one has) “the power and the intention at a given time to exercise dominion and control over the firearm, either directly or through others.” See, e.g., United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003); United States v." }, { "docid": "14055450", "title": "", "text": "to formulate a rule workable for all circumstances.” Id. We find Lane’s case to be distinguishable. There is a marked difference between the steps necessary to exercise control over drugs and those necessary to control a gun. To deal with the “growing menace of drug abuse in the United States,” H.R.Rep. No. 91-1444, at 1 (1970), 1970 U.S.C.C.A.N. 4566, Congress made it illegal to possess drugs with the intent to distribute them. To obtain control over drugs in this context, a defendant needs more than just mere physical contact; he must have the perceived right among the criminals with whom he is interacting to deal, use, transport, or otherwise control what happens to the drugs. See Kitchen, 57 F.3d at 524. Such control is not a foregone conclusion when a defendant’s sole physical contact with drugs is momentary inspection of drugs he does not own or over which he did not have recognized authority. There is a meaningful distinction between physical contact and the ability or authority to control the drugs, so we require proof of a factor beyond mere physical contact to show that the defendant exerted authority or the ability to physically control the drugs. In contrast to drugs, it is much easier to obtain control and therefore possession of a gun in the context of 18 U.S.C. § 922(g)(1). Congress originally passed this law as the Federal Firearms Act of 1938 “to ‘prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind.’ ” Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 46 L.Ed.2d 450 (1975) (quoting S.Rep. No. 1189, at 33 (1937)). Throughout this Act’s subsequent history, this purpose has remained constant. See S.Rep. No. 90-1501, at 22 (1968); H.R.Rep. No. 99-495, at 1-3. From the purpose of the Act, it is reasonable to infer that Congress intended to prohibit felons from exercising any physical control over a gun. Physical control over a gun is remarkably easy to effect. Once the gun is in the defendant’s hands" }, { "docid": "14055444", "title": "", "text": "BAUER, Circuit Judge. Donald Lane was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals both his conviction and his sentence. We affirm. I. Background Donald Lane knew that as a convicted felon and a parolee he was not allowed to possess firearms. But Lane enjoyed hunting and wanted to accompany his father and his girlfriend, Diane Stumph, on a small game hunt for rabbits. On two occasions, Lane discussed his wishes with his parole officer and eventually received permission to observe a hunt provided that he avoid handling any firearms. On March 18, 2000, Lane and Stumph went to the Twin Oaks Tavern. While there, Lane overheard Leroy Bowen discussing his plans to sell a right-handed .22 caliber 10 shot Ruger. Lane expressed interest in purchasing it, so Bowen retrieved the gun from his nearby home. Back at the bar, Lane removed the gun from its box, held and inspected it, negotiated a price, and bought it. Lane says that he bought the gun for Stumph to use while hunting. He corroborates this by explaining that the right-handed gun was useless to Lane, a left-handed man. Stumph never. handled or examined the gun herself, but did give Lane money to buy it. The gun ended up in Stumph’s car, although the parties disagree as to how it got there and the jury made no specific factual finding resolving the difference in the stories. The government presented Bowen’s testimony that Lane returned the gun to its box, picked it up and carried it outside himself. Lane insists that another man at the tavern, Russ Swonger, asked Lane if he could look at the gun. According to Lane, Swonger picked up the box and both men walked out of the tavern. Outside, Swonger examined the gun, returned it to the box, and without being asked, placed the box in Stumph’s car. Swonger corroborated Lane’s recollection. Lane points out that with a general verdict, we cannot be sure whether the jury concluded that he carried the gun to the car, or whether" } ]

[ { "docid": "23708921", "title": "", "text": "videotape evidence appealable); In re Application of National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 949 n. 2 (2d Cir.1980) (order granting access to videotape evidence appealable); United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir.1977) (order denying access to documentary evidence appealable), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); see generally United States v. Chagra, 701 F.2d 354, 358-60 (5th Cir.1983) (collecting cases on appealability issue); but see United States v. Brooklier, 685 F.2d 1162, 1165-66 (9th Cir.1982) (closure order not appealable by non-party, but order reviewed on petition for mandamus). Turning to the merits, we note at the outset that we face no issue here concerning the authority of a trial court to prevent representatives of the press from publishing information in their possession. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). This is not a case of prior restraint; the issue concerns access to information. More precisely, the issue is whether and to what extent the First Amendment limits a trial judge’s authority to exclude the public from a pretrial suppression hearing. In resolving that issue, our task is to extract, as best we can, a governing principle from the four recent decisions of the Supreme Court on the subject of courtroom closure: Press-Enterprise Co. v. Superior Court, — U.S. -, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Though no one of these cases resolves our precise issue, various opinions in all of them provide a substantial basis for decision. The Court’s initial encounter with a closure order provided scant encouragement for a First Amendment claim. Justice Stewart’s opinion for the five-member majority in Gannett was willing to assume that the First Amendment might guarantee access to a suppression hearing in some circumstances, but concluded" } ]

[ { "docid": "23117736", "title": "", "text": "but that an appeal would be treated as a petition for mandamus if the party seeking review has standing and has substantially complied with the requirements of Fed.R.App.P. 21(a) concerning mandamus. Id. at 707-08. Because the Post meets both of those requirements, we treat its appeal as a petition for mandamus. III. The first question in any case involving a denial of public access to judicial proceedings or materials is whether the First Amendment right of access extends to the type of proceeding or materials to which access is sought. Here, the Washington Post seeks access to a plea hearing and a sentencing hearing, as well as to two affidavits submitted in connection with the government’s motion to hold the sentencing hearing in camera. A. The Hearings The First Amendment clearly guarantees the right of the press and the public to attend criminal trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 558-581, 100 S.Ct. 2814, 2818-30, 65 L.Ed.2d 973 (1980) (plurality opinion); In re Knight Publishing Co., 743 F.2d 231, 233 (4th Cir.1984). In Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the Court indicated that the right of access assured by the First Amendment also extends to at least some kinds of pre-trial proceedings in criminal cases. In particular, on the facts of that case, the Court held that the First Amendment right of access applies to voir dire proceedings for the selection of jurors. Because the Court appeared to treat voir dire proceedings as a part of the trial itself, however, some courts subsequently expressed uncertainty as to whether the right of access extended to pre-trial pro ceedings that could not arguably be said to be part of the trial. See, e.g., In re Application of The Herald Co., 734 F.2d 93, 98 (2d Cir.1984). That uncertainty has been resolved by the Supreme Court’s recent decision in Press-Enterprise Co. v. Superior Court (Press-Enterprise II), — U.S. -, 106 S.Ct. 2735," }, { "docid": "22906495", "title": "", "text": "Hotel Rittenhouse, 800 F.2d 339, 343 (3d Cir.1986); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir.1984). We have recognized that “[t]he common law right of access is not limited to evidence, but rather encompasses all ‘judicial records and documents.’ ” United States v. Martin, 746 F.2d 964, 968 (3d Cir.1984) (quoting Nixon v. Warner Communications, 435 U.S. 589, 597, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978)); see also Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir.1983) (recognizing “strong common law presumption in favor of public access to court proceedings and records”), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). In addition, we have stated that the First Amendment, independent of the common law, protects the public’s right of access to the records of civil proceedings. Publicker Industries, 733 F.2d at 1070. In this case, however, we confine our analysis to the common law. Our precedent makes clear that the presumption arising out of the common law right of access to judicial proceedings and records, usually considered by the Supreme Court in connection with criminal trials and proceedings, see, e.g., Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (preliminary criminal hearing); Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (voir dire in criminal action); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (testimony dur ing criminal trial); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (criminal trial), applies in the context of civil proceedings as well, Publicker Industries, 733 F.2d at 1066. We have explained that application of the presumption in civil cases is appropriate because, [t]he public’s exercise of its common law access right in civil cases promotes public confidence in the judicial system.... As with other branches of government, the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness" }, { "docid": "11784785", "title": "", "text": "v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court first articulated this right, holding that there is a qualified right of access under the First Amendment to attend criminal trials. See id. at 580, 100 S.Ct. 2814; see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). The Supreme Court subsequently extended this right of access to apply to the examination of jurors during voir dire, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I ”), and to criminal preliminary hearings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise I/”). In Press-Enterprise II, the Supreme Court synthesized its previous holdings in this area, creating what has since been labeled the “experience” and “logic” test to determine whether a qualified right of access attaches to a particular proceeding. See Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. 2735; cf. Hartford Courant, 380 F.3d at 92, 94-96 (referring to and applying the “experience” and “logic” test). Specifically, the Supreme Court found that its previous “decisions have emphasized two complementary considerations”: first, whether there exists a “tradition” of public access to a type of proceeding that carries “the favorable judgment of experience[ ]” (the experience prong); second, “whether pub- lie access plays a significant positive role in the functioning of the particular process in question” (the logic prong). Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. 2735 (citations and internal quotation marks omitted). The Supreme Court recognized that “[tjhese considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes.” Id. at 9, 106 S.Ct. 2735. In the criminal context, the Second Circuit has found that the First Amendment right of access extends to pre-trial suppression hearings, see Application of The Herald Co., 734 F.2d 93, 99 (2d Cir.1984), plea hearings and plea agreements filed in connection with those hearings, see United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988), and" }, { "docid": "6683878", "title": "", "text": "to them will necessarily impact on the question whether the district court also properly sealed the sentencing memorandum. We exercise plenary review over whether the First Amendment or the common law creates a presumptive light of access to judicial documents or proceedings. Antar, 38 F.3d at 1356-57. Although we generally review the factual findings of the district court for clear error, in the First Amendment context, we exercise independent appellate review of the record. See Swineford v. Snyder County, 15 F.3d 1258, 1265 (3d Cir.1994); United States v. Simone, 14 F.3d 833, 836 (3d Cir.1994). Thus, when we deal with a First Amendment right of access claim, our scope of review of factual findings “is substantially broader than that for abuse of discretion.” Antar, 38 F.3d at 1357. With respect to the newspapers’ common law right of access to judicial proceedings and paper’s, we review the district court’s order for abuse of discretion. In re Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 92 (3d Cir.1990). II. First Amendment Right of Access to Proceedings and Records The First Amendment right of access to criminal proceedings is firmly established. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court held that the First Amendment provides a public right of access to criminal trials. Tracing the history of open criminal trials from the days before the Norman Conquest, the Court found that criminal trials are covered by a “presumption of openness,” and, as such, may be closed only if justified by an “overriding interest articulated in findings.” Id. at 573, 581, 100 S.Ct. at 2825, 2829. The Court has since extended that holding to other aspects of a criminal case, see, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”) (voir dire); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II ”) (preliminary hearing), and we have done the same, affording a public right of access to additional aspects of criminal proceedings," }, { "docid": "3558000", "title": "", "text": "U.S. at 602, 98 S.Ct. at 1314. Challenges to closure decisions based on the common law right of access are reviewed for abuse of discretion. Nixon, 435 U.S. at 599, 98 S.Ct. at 1312-13. The Media Representatives further contend there is a First Amendment right of access to the documents. The First Amendment protects the right of the public and the press to attend criminal trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 558-81, 100 S.Ct. 2814, 2818-30, 65 L.Ed.2d 973 (1980) (plurality opinion). The Supreme Court has applied a qualified version of this First Amendment right to attend certain pre-trial proceedings in criminal eases which historically have been, and logically should be, open to the public, allowing access except where closure is essential to serve a higher interest and where closure is narrowly tailored. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7-9, 106 S.Ct. 2735, 2739-41, 92 L.Ed.2d 1 (1986) (Press-Enterprise II) (recognizing right of access to preliminary hearings as conducted in California); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I) (recognizing right of access to voir dire proceedings). A number of circuits have concluded that the logic of Press-Enterprise II extends to at least some categories of court documents and records, such that the First Amendment balancing test there articulated should be applied before such qualifying documents and records can be sealed. It should be emphasized, however, that in not all of these cases did the court ultimately conclude that these records had to be made available to the public after the balancing test was applied. See, e.g., Washington Post v. Robinson, 935 F.2d 282, 287 (D.C.Cir.1991) (plea agreement — vacated order to seal because of inadequate justification and inadequate findings); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir.1988) (affidavits accompanying search warrants — affirmed order to seal affidavits and revised order to seal docket entries); United States v. Haller, 837 F.2d" }, { "docid": "10427717", "title": "", "text": "has clarified that the press and public have a “qualified right of access” under the First and Fourteenth Amendments to at least some criminal proceedings. Waller v. Georgia, 467 U.S. 39, 44-45, 104 S.Ct. 2210, 2214, 81 L.Ed.2d 31 (1984). That right was first recognized with regard to the actual trial, see Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. at 2829 (plurality opinion of Burger, C.J.), at 585,100 S.Ct. at 2831 (Brennan, J., concurring in the judgment), at 599, 100 S.Ct. at 2839 (Stewart, J., concurring in the judgment), at 604, 100 S.Ct. at 2842 (Blackmun, J., concurring in the judgment); Globe Newspaper, 457 U.S. at 603-04, 102 S.Ct. at 2618, including the selection of jurors, Press-Enterprise I, 464 U.S. at 508-510, 104 S.Ct. at 823-24, and later in regard to certain pretrial proceedings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) “Press-Enterprise II”) (In determining whether a public right of access attaches to a proceeding, courts consider whether the proceeding has historically been open and whether “public access plays a significant positive role in the functioning of the particular process in question.”) (finding that the right attaches to preliminary hearings under California law). See also United States v. Haller, 837 F.2d 84, 87 (2d Cir.1988) (right of access attaches to plea hearings and related documents); In re New York Times Co., 828 F.2d 110, 116 (2d Cir.1987) (“In re New York Times I ”) (motion papers submitted for suppression hearing), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988), opinion after remand, 834 F.2d 1152 (2d Cir.1987) (per curiam) (“In re New York Times II”), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988); In re Herald Co., 734 F.2d 93, 99-101 (2d Cir.1984) (suppression hearing). Because the right of access to criminal proceedings is not absolute, it “may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller, 467-U.S. at 45," }, { "docid": "22287787", "title": "", "text": "at 2823-25. This right is not absolute; “it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Court, 457 U.S. at 607, 102 S.Ct. at 2620. The Supreme Court’s discussion in Richmond Newspapers of the history and function of public access to criminal trials has become the framework for subsequent considerations of whether the public has a right of access to other aspects of judicial proceedings. The Supreme Court recently employed this analysis when it recognized a public right of access to voir dire in a criminal trial. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 821-24, 78 L.Ed.2d 629 (1984). We followed this analysis when we recog nized a qualified right of the public to attend bail proceedings, although in that particular case we held that the accused’s right to a fair trial and privacy outweighed the public’s right of access. In re Globe Newspaper Co., 729 F.2d 47 (1st Cir.1984). Other courts of appeals also have applied this analysis in recognizing a public right of access to criminal pretrial hearings. See, e.g., Associated Press v. United States District Court, 705 F.2d 1143 (9th Cir.1983) (right of access to pretrial criminal documents); United States v. Chagra, 701 F.2d 354 (5th Cir.1983) (right to attend bail reduction hearings); United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982) (right to attend voir dire and pretrial su-pression hearings); United States v. Criden, 675 F.2d 550 (3d Cir.1982) (right to attend pretrial supression, due process, and entrapment hearings). These cases demonstrate that there is general agreement among the courts that the public’s right of access attaches to decisions “of major importance to the administration of justice.” In re Globe Newspaper Co., 729 F.2d at 52. Several courts have recognized a public right of access to civil as well as criminal trials. See Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 22-23 (2d Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3478, 87 L.Ed.2d 614 (1985); Publicker Industries, Inc. v. Cohen," }, { "docid": "9479976", "title": "", "text": "self-government. Id. at 606, 102 S.Ct. 2613 (footnotes omitted); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I ”) (“The open trial ... plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”); Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. 2814 (“Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.”); In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (“[T]he [public trial] guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”). The Supreme Court has held further that the First Amendment right of access extends beyond simply the trial phase of a criminal prosecution. In Press-Enterprise I, the Court held that the public has a right to observe the examination of jurors during voir dire. 464 U.S. at 510-13, 104 S.Ct. 819; see also ABC, Inc. v. Stewart, 360 F.3d 90, 98-100 (2d Cir.2004). Two years later, in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”), the Supreme Court concluded that the right of access extends to a preliminary hearing in a" }, { "docid": "23542730", "title": "", "text": "reading of the interests-of-justice standard is even more strongly indicated by the following prudential rule recently reiterated by the Supreme Court: It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question. Gomez v. United States, [490 U.S. 858, _] 109 S.Ct. 2237, 2241 [104 L.Ed.2d 923] (1989). Withholding the names of trial jurors from press or public, after the trial has terminated, involves a clash of constitutionally protected interests. On the one hand, impounding juror names implicates the press’s First Amendment right of access to criminal trials. See Press Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) (Press Enterprise II). On the other hand, disclosure may implicate the defendant’s Sixth Amendment right to a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522-23, 16 L.Ed.2d 600 (1966); In re Globe Newspaper Co., 729 F.2d 47, 52-53 (1st Cir.1984). Also, the jurors themselves have an interest in having their privacy protected. See Press Enterprise Co. v. Superior Court, 464 U.S. 501, 510-13, 104 S.Ct. 819, 824-26, 78 L.Ed.2d 629 (1984) (Press Enterprise I). The Supreme Court has firmly established that the First Amendment protects the right of press and public to attend criminal proceedings, together with the “right to gather information”. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972); Richmond Newspapers v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2826-27, 65 L.Ed.2d 973. This right has been found to include access to trial testimony of minor sex offense victims, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); access to voir dire proceedings, Press Enterprise I, 464 U.S. at 501, 104 S.Ct. at 819-20, and access to a pre-trial criminal hearing, Press Enterprise II, 478 U.S. at 1, 106 S.Ct. at 2735-37. In addition, this court has extended the Supreme Court’s analysis to find a First Amendment right to attend bail hearings. In re Globe Newspaper" }, { "docid": "23542731", "title": "", "text": "in having their privacy protected. See Press Enterprise Co. v. Superior Court, 464 U.S. 501, 510-13, 104 S.Ct. 819, 824-26, 78 L.Ed.2d 629 (1984) (Press Enterprise I). The Supreme Court has firmly established that the First Amendment protects the right of press and public to attend criminal proceedings, together with the “right to gather information”. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972); Richmond Newspapers v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2826-27, 65 L.Ed.2d 973. This right has been found to include access to trial testimony of minor sex offense victims, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); access to voir dire proceedings, Press Enterprise I, 464 U.S. at 501, 104 S.Ct. at 819-20, and access to a pre-trial criminal hearing, Press Enterprise II, 478 U.S. at 1, 106 S.Ct. at 2735-37. In addition, this court has extended the Supreme Court’s analysis to find a First Amendment right to attend bail hearings. In re Globe Newspaper Co., 729 F.2d 47 (1st Cir.1984). These decisions have been rooted in the historic common law public character of criminal proceedings since the Norman Conquest in England and the United States Constitution as an “indispensable attribute of an Anglo-American trial.” Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823. The Supreme Court has identified the following purposes which open justice serves: assuring that proceedings are conducted fairly; discouraging perjury, misconduct of participants, and biased decisions; prophylaxis as an outlet for community hostility and emotion; ensuring public confidence in a trial’s results through the appearance of fairness; inspiring confidence in judicial proceedings through education regarding the methods of government and judicial remedies. Id. at 571-72, 100 S.Ct. at 2824-25; Press Enterprise I, 464 U.S. at 508-09, 104 S.Ct. at 823-24; In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1336-37 (D.C.Cir.1985) (Scalia, J.). To be sure, access to jurors’ lists is distinguishable from the situations above, because the juror names and addresses are collateral information kept by the court for its necessary" }, { "docid": "20385333", "title": "", "text": "Justice Brennan’s concurrence in Richmond Newspapers offered “two helpful principles” to guide courts in determining whether a qualified right of access attaches to a given government proceeding. Id. at 589, 100 S.Ct. 2814 (Brennan, J., concurring). First, courts should inquire into “experience” (history) and “consider[ ] whether the place and process have historically been open to the ... public.” Press-Enterprise v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”) (internal quotation marks omitted). Second, courts should consider “logic” (functionality) and ask whether public access “plays a significant positive role in the functioning of the particular process in question.” Id. Courts apply this experience and logic test to determine whether a qualified right of public access attaches to a given government forum. See, e.g., Globe Newspaper, 457 U.S. at 605, 102 S.Ct. 2613; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94-95 (2d Cir.2004). Reading Richmond Newspapers broadly, the Supreme Court has subsequently held that the First Amendment safeguards a qualified right of access not only to criminal trials but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 608-10, 102 S.Ct. 2613; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”); and preliminary hearings, Press-Enterprise II, 478 U.S. at 13-15, 106 S.Ct. 2735. Our circuit has further held that the presumption of access applies to other aspects of criminal trials as well, including judicial records such as videotapes of defendants, In re Application of Nat’l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. Klepfer), 734 F.2d 93, 99 (2d Cir.1984); plea agreements and plea hearings, United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988); information on the payment of court-appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir.1989); bail hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir.2004); live voir dire proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004); and" }, { "docid": "9479977", "title": "", "text": "misconduct of participants, and decisions based on secret bias or partiality.”); In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (“[T]he [public trial] guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”). The Supreme Court has held further that the First Amendment right of access extends beyond simply the trial phase of a criminal prosecution. In Press-Enterprise I, the Court held that the public has a right to observe the examination of jurors during voir dire. 464 U.S. at 510-13, 104 S.Ct. 819; see also ABC, Inc. v. Stewart, 360 F.3d 90, 98-100 (2d Cir.2004). Two years later, in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”), the Supreme Court concluded that the right of access extends to a preliminary hearing in a criminal case. In Press-Enterprise II, the Supreme Court “formulated a two-pronged inquiry for evaluating whether particular proceedings should enjoy openness.” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 92 (2d Cir.2004). The Court explained: In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because, a tradition of accessibility implies the favorable judgment of experience, we have considered whether the place and process have historically been open to the press and general public. Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. 2735 (citations and internal quotation marks omitted). “This analysis has been summarized as requiring examination of both ‘logic’ and ‘experience’ in establishing the public’s and press’s qualified First Amendment right of access.” Hartford Courant Co., 380 F.3d at 92 (citing ABC, 380 F.3d at 98 (quoting Globe Newspaper, 457 U.S. at 606, 102 S.Ct." }, { "docid": "20385334", "title": "", "text": "but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 608-10, 102 S.Ct. 2613; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”); and preliminary hearings, Press-Enterprise II, 478 U.S. at 13-15, 106 S.Ct. 2735. Our circuit has further held that the presumption of access applies to other aspects of criminal trials as well, including judicial records such as videotapes of defendants, In re Application of Nat’l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. Klepfer), 734 F.2d 93, 99 (2d Cir.1984); plea agreements and plea hearings, United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988); information on the payment of court-appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir.1989); bail hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir.2004); live voir dire proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004); and sentencing hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir.2005). We have also held that the public’s right implies that particular indi viduals may not be summarily excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir.2005). Most relevant for the present case, we have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir.1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal docket sheets). Significantly, all the other circuits that have considered the issue have come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir.1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir.1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th" }, { "docid": "14037412", "title": "", "text": "[Government]: That’s fine, Judge. THE COURT: — without docketing. A similar procedure was followed at Sanchez's status and bond hearing. . This right extends not only to the criminal trial itself, but also to other integral parts of the trial process such as voir dire proceedings and preliminary hearings. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (\"Press-Enterprise /”) (voir dire proceedings); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (\"Press-Enterprise II\") (preliminary hearings). It also attaches to the transcripts of these proceedings. See Press-Enterprise II, 478 U.S. at 3, 13-15, 106 S.Ct. 2735 (transcript of preliminary hearing). Other Circuits have also recognized a right of access to plea hearings, plea agreements, and related documents. Oregonian Publishing Co. v. United States Dist. Court, 920 F.2d 1462, 1465-66 (9th Cir.1990) (right of access to plea agreements and related documents); United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.1989) (right to attend proceedings at which pleas are taken and inspect the transcripts); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988) (right of access to plea hearings and plea agreements); In re Washington Post Co., 807 F.2d 383, 388-90 (4th Cir.1986) (right of access to plea hearings, sentencing hearings, and documents filed in connection thereto). . The docket sheet forms an integral part of a criminal proceeding, acting as both an index and a publication. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir.2004). As an index, the docket catalogues all the proceedings and information taken before a court in that case. It permits both the court and observers to locate documents and proceedings that otherwise would be lost within the court’s vast record collections. See, e.g., Brown v. Lester, 21 Miss. 392, 394 (1850). It also allows one to quickly determine the status of a case, the actions of the parties, and the determinations of the judge, without requiring the inspection of every item in the case file. Id. As a publication, the docket sheet provides the public and press" }, { "docid": "5016792", "title": "", "text": "of access to criminal trials and related criminal proceedings. See Richmond Newspapers v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (finding an implicit First Amendment right to attend criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (holding that state statute prohibiting public from criminal trials of specified sexual offenses involving a victim under the age of 18 violated the First Amendment); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I) (holding that First Amendment right of public access to criminal trials extends to voir dire proceedings); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II) (extending the First Amendment right of access to criminal preliminary hearings). In these cases, the Supreme Court reasoned that the First Amendment protected access to criminal trials because such trials historically have been open to the public and because a right of access plays a significant positive role in the functioning of the criminal trial process. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). However, the Supreme Court has not extended this right of access outside the realm of criminal trials and related criminal proceedings. See Globe Newspaper Co., 457 U.S. at 611, 102 S.Ct. 2613 (O’Connor, J., concurring) (stating that “neither Richmond Newspapers nor the Court’s decision today carry any implications outside the context of criminal trials”); El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495 (1st Cir.1992) (“[W]e seriously question whether Richmond Newspaper and its progeny carry positive implications favoring rights of access outside the criminal justice system.”); Calder v. IRS, 890 F.2d 781, 783 (5th Cir.1989) (declining to extend Richmond line’s right of access to administrative agency documents). Therefore, the Court believes that Richmond and its progeny only apply when criminal proceedings are involved, and that Houchins applies to other types of government information. See Capital Cities Media, 797 F.2d at 1173 (stating that the Richmond" }, { "docid": "5705324", "title": "", "text": "parties as well as those of defendants that may be harmed by disclosure of the Title III material and should weigh heavily in a court’s balancing equation in determining what portions of motion papers in question should remain sealed or should be redacted.” Id. In light of the standards developed to analyze qualified First Amendment right of access issues, the court turns to the experience and logic considerations. The Experience Consideration In determining right of access issues, the historic context of the particular criminal proceeding at issue is significant not only “because the Constitution carries the gloss of history,” but also because “a tradition of accessability implies the favorable judgment of experiences.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Certain aspects of criminal proceedings, such as access to criminal trials, have traditionally been open to the public throughout this country’s history and even before in England, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (“at the time when our organic laws were- adopted, criminal trials both here and in England had long been presumptively open” to the public), but other aspects of criminal proceedings have not been open tp the public. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (“the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings”). Courts have found ah historic tradition of access to various aspects of criminal proceedings including jury voir dire, Press-Enterprise I, 464 U.S. 501, 104 S.Ct. 819; United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982), preliminary hearings, Press-Enterprise II, 478 U.S. 1, 106 S.Ct. 2735, suppression hearings, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and bail hearings. In re Globe Newspaper Co., 729 F.2d 47 (1st Cir.1984). Applying the experience factor, the court finds no historical tradition of open public access to Title III materials or search warrant affidavits at the present stage in this criminal proceeding. The Title III" }, { "docid": "9516425", "title": "", "text": "first question in this case is whether the press and public, including the Chronicle, have a First Amendment right of access to a sentencing proceeding. We conclude that they do. The Supreme Court has developed a two-part test for determining whether there is a First Amendment right of access to a particular criminal proceeding: (1) whether the proceeding has historically been open to the public and press; and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8-9, 106 S.Ct. 2735; see also Press-Enterprise Co. v. Super. Ct. (Press-Enterprise I), 464 U.S. 501, 505-09, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). This test has been referred to as the “experience” and “logic” test. See Globe Newspaper Co., 457 U.S. at 606, 102 S.Ct. 2613 (explaining that “the institutional value of the open criminal trial is recognized in both logic and experience”); see also Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. 2735 (summarizing the test as “considerations of experience and logic”). In applying this test, the Supreme Court has recognized a First Amendment right of access to various aspects of a criminal prosecution. See Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735 (preliminary hearings as conducted in California); Press-Enterprise I, 464 U.S. at 505, 104 S.Ct. 819 (jury voir dire); Globe Newspaper Co., 457 U.S. at 604, 102 S.Ct. 2613 (trial); Richmond Newspapers, Inc., 448 U.S. at 576-77, 100 S.Ct. 2814 (trial). The courts of appeals have also recognized a First Amendment right of access to various proceedings within a criminal prosecution. See, e.g., United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.1989) (proceeding at which guilty plea was taken); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988) (plea hearings); In re Knight Publ’g Co., 743 F.2d 231, 233 (4th Cir.1984) (trials); United States v. Klepfer (In re Herald Co.), 734 F.2d 93, 99 (2d Cir.1984) (pretrial hearing on motion to suppress); United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir.1983) (pretrial bond reduction hearing); United States v. Brooklier, 685 F.2d" }, { "docid": "9516426", "title": "", "text": "In applying this test, the Supreme Court has recognized a First Amendment right of access to various aspects of a criminal prosecution. See Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735 (preliminary hearings as conducted in California); Press-Enterprise I, 464 U.S. at 505, 104 S.Ct. 819 (jury voir dire); Globe Newspaper Co., 457 U.S. at 604, 102 S.Ct. 2613 (trial); Richmond Newspapers, Inc., 448 U.S. at 576-77, 100 S.Ct. 2814 (trial). The courts of appeals have also recognized a First Amendment right of access to various proceedings within a criminal prosecution. See, e.g., United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.1989) (proceeding at which guilty plea was taken); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988) (plea hearings); In re Knight Publ’g Co., 743 F.2d 231, 233 (4th Cir.1984) (trials); United States v. Klepfer (In re Herald Co.), 734 F.2d 93, 99 (2d Cir.1984) (pretrial hearing on motion to suppress); United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir.1983) (pretrial bond reduction hearing); United States v. Brooklier, 685 F.2d 1162, 1167-71 (9th Cir.1982) (jury voir dire, pretrial hearing on motion to suppress, and hearing conducted during trial on motion to suppress); Criden, 675 F.2d at 557 (pretrial suppression, due process, and entrapment hearings). But see Edwards, 823 F.2d at 116-17 (First Amendment right of access does not attach to mid-trial questioning of jurors about potential misconduct). Although neither the Supreme Court nor this court has specifically considered whether the First Amendment applies to a sentencing hearing, the Second, Fourth, Seventh, and Ninth Circuits have done so, and each has concluded that it does. United States v. Alcantara, 396 F.3d 189, 196-99 (2d Cir.2005); United States v. Eppinger, 49 F.3d 1244, 1252-53 (7th Cir. 1995); United States v. Soussoudis (In re Washington Post Co.), 807 F.2d 383, 389 (4th Cir.1986) (plea hearings and sentencing proceedings); CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985) (“The primary justifications for access to criminal proceedings ... apply with as much force to post-conviction proceedings as to the trial itself.”). Relatedly, courts of appeals have also" }, { "docid": "11784786", "title": "", "text": "at 92, 94-96 (referring to and applying the “experience” and “logic” test). Specifically, the Supreme Court found that its previous “decisions have emphasized two complementary considerations”: first, whether there exists a “tradition” of public access to a type of proceeding that carries “the favorable judgment of experience[ ]” (the experience prong); second, “whether pub- lie access plays a significant positive role in the functioning of the particular process in question” (the logic prong). Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. 2735 (citations and internal quotation marks omitted). The Supreme Court recognized that “[tjhese considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes.” Id. at 9, 106 S.Ct. 2735. In the criminal context, the Second Circuit has found that the First Amendment right of access extends to pre-trial suppression hearings, see Application of The Herald Co., 734 F.2d 93, 99 (2d Cir.1984), plea hearings and plea agreements filed in connection with those hearings, see United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988), and sentencing proceedings, see United States v. Alcantara, 396 F.3d 189, 199 (2d Cir.2005). Although the Supreme Court has not explicitly recognized a First Amendment right of access outside of the criminal context, the Second Circuit has held that the right applies to civil as well as criminal proceedings, see Westmoreland, 752 F.2d at 23 (finding that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”), and, applying the experience and logic test, has extended this right to encompass docket sheets of civil proceedings, see Hartford Courant, 380 F.3d at 90-96. Other circuits have also concluded that the First Amendment right of access attaches in the civil context. See Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Publisher Indus. Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165 (6th Cir.1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). The Second Circuit has" }, { "docid": "22570017", "title": "", "text": "and the press a qualified right of access to criminal trials, see id. at 580, 100 S.Ct. 2814, to the examination of jurors during voir dire, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to preliminary hearings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The circuits, including ours, have concurred in holding that this right applies to civil as well as criminal proceedings. See Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”); see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988) (holding that the “rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (determining that “the First Amendment embraces a right of access to [civil] trials”) (citation and internal quotation marks omitted). Numerous federal and state courts have also extended the First Amendment protection provided by Richmond Newspapers to particular types of judicial documents, determining that the First Amendment itself, as well as the common law, secures the public’s capacity to inspect such records. See, e.g., In re Providence Journal Co., 293 F.3d 1, 10-13 (1st Cir.2002) (holding that the District of Rhode Island’s blanket policy of refusing to file memoranda of law that counsel were required to submit in connection with motions violated the First Amendment); Phoenix Newspapers, Inc. v. United States Dist. Court, 156 F.3d 940, 948 (9th Cir.1998) (determining that the First Amendment requires “release of transcripts [of closed criminal proceedings] when the competing interests precipitating hearing closure are no longer viable”); United States v. Antar, 38 F.3d 1348, 1359-60 (3d Cir.1994) (stating that “the right of access to voir dire examinations encompasses equally the live proceedings and the transcripts which document those proceedings” and observing that “[i]t is access to the" } ]

[ { "docid": "22629884", "title": "", "text": "that B/E terminated her because of her sex in violation of Title VII. A plaintiff may establish a prima facie case of discrimination through circumstantial evidence by proving that (1) she belongs to a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated employees outside her classification more favorably; and (4) she was qualified to do the job. See Holifield, 115 F.3d at 1562 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068, 1073 (11th Cir.1995); Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir.1994)). The plaintiff and the employee she identifies as a comparator must be similarly situated “in all relevant respects.” Id. The comparator must be nearly identical to the plaintiff to prevent courts from second-guessing a reasonable decision by the employer. See Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). The district court found that Wilson failed to establish a prima facie case of discrimination in the termination of her employment. Although Wilson is a member of a protected class, was subjected to an adverse employment action when B/E terminated her, and was qualified for her job, Wilson failed to identify any male employee who was similarly situated and treated more favorably than she was treat ed. Wilson’s failure to identify a comparator does not end the analysis of her termination claim, however. “If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Holifield, 115 F.3d at 1562 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st Cir.1989) (emphasis added)). Wilson attempts to prove that she was terminated because of her sex in two ways. She first asserts that she was not guilty of insubordination. She next speculates that B/E terminated her because “she was discriminatorily passed over for promotion, knew it, and discomfited her superiors by complaining of it[.]” Wilson’s self-serving assertion that she was not insubordinate does not" } ]

[ { "docid": "20128011", "title": "", "text": "out a prima facie case by showing just that [he] belongs to a protected class and that [he] did not violate [his] employer’s work rule.”). The Bessemer court further states that “[t]he plaintiff must also point to someone similarly situated (but outside the protected class) who disputed a violation of the rule and who was, in fact, treated better.” Id.; see also Foster v. Mid State Land & Timber Co., Inc., 2007 WL 3287345 (M.D.Ala.2007) (citing and analyzing Gerwens and Bessemer). From this analysis and the clear command of Bessemer, the Court looks to whether Melton has identified a similarly situated person outside the protected class who was not terminated for alleged dishonesty. As to the similarly situated requirement, a valid comparator requires an employee who is “similarly situated in all relevant aspects.” Holifield, 115 F.3d at 1562. For purposes of the prima facie showing, “[t]he most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999); accord Maynard v. Bd. of Regents of Div. Of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.2003) (citation omitted). Moreover, when conducting the comparator analysis, a court must bear in mind that an employer may interpret its rules as it chooses and make determinations as it sees fit under those rules. Maniccia, 171 F.3d at 1369. Melton has the burden to prove “that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions.” Id. at 1368; see also Greer v. Birmingham Beverage Co., 291 Fed.Appx. 943, 946 (11th Cir.2008) (quoting Maniccia). Consequently, when the plaintiff and the proposed comparator are not similarly situated, the employer’s decision to impose a different punishment on each does not raise an inference of illegal discrimination. See Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir.1999). Melton offers Wayne Brown as the similarly situated white employee who was treated differently. See Doc. 120 at p. 71. Brown totaled his rig while" }, { "docid": "22194367", "title": "", "text": "by this sub-chapter [of the FMLA].” 29 U.S.C. § 2615(a)(2). Additionally, “[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.” 29 C.F.R. § 825.220(c). When evaluating a claim of retaliation under the FMLA, in the absence of direct evidence of discrimination on the part of the employer, we apply the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for evaluating Title VII retaliatory discharge claims. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275, 1283 (11th Cir.1999) (affirming based on the holding and rationale of the district court’s order, which in turn applied the McDonnell-Douglas framework); see also King v. Preferred Technical Group, 166 F.3d 887, 891-92 (7th Cir.1999) (“We find no reason to treat an intent-based FMLA claim ... any differently than other retaliatory discharge cases.”); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir.1999) (applying the McDonnell Douglas framework to evaluate claims that an employee was penalized for exercising rights protected by the FMLA in the absence of direct evidence of discrimination); Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir.1998) (same); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (same). In order to establish a prima facie case of retaliatory discharge or retaliation using the McDonnell Douglas framework, a plaintiff must show that (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected conduct and the adverse employment action. See Parris v. Miami Herald Pub’g Co., 216 F.3d 1298, 1301 (11th Cir.2000); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (Title VII); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999) (ADA). BellSouth does not dispute that Brun-gart has satisfied the first two elements of the prima facie case. Brungart did engage in protected conduct by applying for FMLA leave for knee surgery, and she also suffered the adverse employment action of" }, { "docid": "15014166", "title": "", "text": "evidence which, “if believed, proves the existence of discriminatory motive ‘without inference or presumption’ ” Hamilton v. Montgomery County Bd. of Educ., 122 F.Supp.2d 1273, 1279 (M.D.Ala.2000) (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998)). As the Middle District of Alabama explained: Not only must it be evidence of discriminatory ‘actions or statements of an employer’ but the actions or statements at issue must ‘correlat[e] to the discrimination or retaliation complained of by the employee.’ Further, the statements ‘must be made by a person involved in the challenged decision’ and must not be subject to varying reasonable interpretations. Id. (quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D.Ala.1998)). The court finds that none of the evidence submitted by plaintiff qualifies as direct evidence of racial discrimination in employment. Plaintiff has in fact offered very little evidence at all concerning racial discrimination. Plaintiff alleges that an employee called him “boy” on one occasion and asserts that he has been yelled at and unfairly written up. Clearly this does not constitute direct evidence of racial discrimination. Plaintiffs may attempt to show discrimination based on circumstantial evidence through the application of the McDonnell Douglas burden-shifting analysis established by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997)). In order to make out a prima facie case of discriminatory termination on account of race, plaintiff must show: (1) he is a member of a protected class; (2) he suffered an adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (citations omitted).” Potts v. Conecuh-Monroe Counties Gas Dist., 2000 WL 1229838, *17 (S.D.Ala.2000) It is undisputed that plaintiff is a member of a" }, { "docid": "11527298", "title": "", "text": "require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 259, 106 S.Ct. 2505. 2. STANDARDS OF PROOF IN TITLE VII CLAIMS Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). To prevail on a Title VII claim, a plaintiff must prove that the defendant acted with discriminatory intent. Hawkins v. Ceco Corp., 883 F.2d 977, 980-981 (11th Cir.1989); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir.1983). Such discriminatory intent may be established either by direct evidence of discriminatory intent or by circumstantial evidence meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 86 L.Ed.2d 668 (1973); see also Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.1997); Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.1984). Direct evidence is defined as “evidence, which if believed, proves existence of fact in issue without inference or presumption.” Black’s Law Dictionary 413 (6th ed.1990); see also Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (11th Cir.1993); Carter v. City of Miami 870 F.2d 578, 581-82 (11th Cir.1989); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir.1987). Evidence that merely “suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence” is, by definition, circumstantial. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990). Because direct evidence of discrimination is seldom available, a plaintiff must typically rely on circumstantial evidence to prove discriminatory intent, using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Bur-dine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Holifield v. Reno, 115 F.3d 1555," }, { "docid": "20128002", "title": "", "text": "(2) that the defendant intended to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute.” Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir.2007) (quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1270 (11th Cir.2004)); accord Jimenez, 596 F.3d at 1308-09 (11th Cir.2010). Therefore, to survive summary judgment, Plaintiffs must identify a genuine issue of material fact as to each element. Kinnon, 490 F.3d at 891. To show that a defendant acted with discriminatory purpose — i.e., element 2 of the § 1981 cause of action — a plaintiff must present either (1) statistical proof of a pattern of discrimination, (2) direct evidence of discrimination, which consists of evidence which, if believed, would prove the existence of discrimination without inference or presumption, or (3) circumstantial evidence of discriminatory intent using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.1997). The Eleventh Circuit has defined direct evidence of discrimination as “evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Damon, 196 F.3d 1354, 1358 (11th Cir.1999) (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998)). “Only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.2004) (internal quotations and citations omitted). “If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence.” Id. (citations omitted). Thus, “remarks by a non-decision maker[ ] or remarks unrelated to the decision making process itself are not direct evidence of discrimination.” Standard, 161 F.3d at 1330. When a plaintiff has direct evidence, he need not rely on the McDonnell Douglas framework. Holifield, 115 F.3d at 1561. However, in the usual case, direct evidence and statistical evidence are not present, and" }, { "docid": "11527299", "title": "", "text": "F.3d 1555, 1561-62 (11th Cir.1997); Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.1984). Direct evidence is defined as “evidence, which if believed, proves existence of fact in issue without inference or presumption.” Black’s Law Dictionary 413 (6th ed.1990); see also Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (11th Cir.1993); Carter v. City of Miami 870 F.2d 578, 581-82 (11th Cir.1989); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir.1987). Evidence that merely “suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence” is, by definition, circumstantial. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990). Because direct evidence of discrimination is seldom available, a plaintiff must typically rely on circumstantial evidence to prove discriminatory intent, using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Bur-dine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.1997); Combs v. Plantation. Patterns, 106 F.3d 1519, 1527-1528 (11th Cir.1997). Under this framework, a plaintiff is first required to create an inference of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; see also Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1310, reh’g denied and opinion superseded in part, 151 F.3d 1321 (11th Cir.1998); Combs, 106 F.3d at 1527. Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Jones, 137 F.3d at 1310-1311; Holifield, 115 F.3d at 1562 (citations omitted); see Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94. Once the plaintiff establishes a prima facie case, the defendant must “articulate some legitimate, nondiseriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Jones, 137 F.3d at 1310. This burden is “exceedingly light” in comparison to the burden required if the" }, { "docid": "22367521", "title": "", "text": "Appellant is estopped from arguing she did not lie, disseminate confidential information, or misuse her patrol ear. As the district court correctly found, however, this conclusion does not preclude Appellant from alleging and proving her termination was the product of sex discrimination or retaliation. See Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376, 1380 (11th Cir.1988) (holding that even though plaintiff was es-topped from arguing that no legitimate reasons existed for adverse employment action, nothing precluded him from arguing that racially discriminatory reason existed as well). B. Disparate Treatment To establish a prima facie case of disparate treatment, Appellant must show: (1) she is a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated male employees more favorably; and (4) she was qualified to do the job. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The parties do not dispute that Appellant is a woman, she was fired, and she was qualified for her job. They do disagree, however, as to whether Appellant was treated less favorably than similarly situated male employees. “In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), opinion modified by 151 F.3d 1321 (1998) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). “The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.” Id. (internal quotations and citations omitted). We require that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges. See Dartmouth Review v. Dartmouth College, 889 F.2d 13," }, { "docid": "1058862", "title": "", "text": "file complaints of disability discrimination under the ADA. See 42 U.S.C. § 12203(a). In analyzing Smith’s retaliation-claim, we use the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although the framework was developed for Title VII cases, our sister circuits have all accepted its application to ADA retaliation suits under § 12203(a), as we do now. See Brown v. City of Tucson, 336 F.3d 1181, 1186-87 (9th Cir.2003); New England Health Care Employees Union v. R.I. Legal Servs., 273 F.3d 425, 429 (1st Cir.2001); Rhoads v. FDIC, 257 F.3d 373, 391-92 (4th Cir.2001); Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.2000); Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir.1999); Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999); Walborn v. Erie County Care Facility, 150 F.3d 584, 588-89 (6th Cir.1998); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir.1998); Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997); see also Brown v. Brody, 199 F.3d 446, 456 n. 10 (D.C.Cir.1999) (“Courts of appeals routinely apply the same standards to evaluate Title VII claims as they do ADA claims, ADEA claims, and even ERISA claims.”). Under this framework, the plaintiff must establish the three elements of a prima facie case of retaliation: first, that she “engaged in protected activity”; second, that she “was subjected to adverse action by the employer”; and third, that “there existed a causal link between the adverse action and the protected activity.” Jones v. Wash. Metro. Area Transit Auth., 205 F.3d 428, 433 (D.C.Cir.2000) (internal quotation marks and citations omitted). “Such a showing raises ‘a rebuttable presumption of unlawful discrimination’ and shifts to the defendant the burden to ‘rebut the presumption by asserting a legitimate, non-discriminatory reason for its actions.’ ” Id. (citations omitted). If the defendant does so, “the McDonnell Douglas framework disappears, and" }, { "docid": "15788416", "title": "", "text": "letter relating to his Charge of Discrimination. The City of Montgomery does not concede, however, that Sanders has satisfied all of the procedural prerequisites to bringing his claims pursuant to Title VII. . Sanders makes an extensive argument that he has presented direct evidence in support of his claims of discrimination. The Eleventh Circuit Court of Appeals has made it plain that [d]irect evidence is “evidence, which if believed, proves [the] existence of [the] fact in issue without inference or presumption.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir.1997) (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir.1987)). If the plaintiff offers direct evidence and the trier of fact accepts that evidence, then the plaintiff has proven discrimination. McCarthney v. Griffin-Spalding County Bd. of Educ., 791 F.2d 1549, 1553 (11th Cir.1986). Maynard v. Board of Regents of Div. of Universities of Fla. Dep’t of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir.2003). Having reviewed the evidentiary record as a whole, the Court finds no evidence which if believed proves the existence of discrimination without inference or presumption. Having failed to offer direct evidence Sanders must rely on the circumstantial evidence model of proof. Id. . There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment; the onus is on the parties to formulate arguments. See, e.g. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.), cert. denied, 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir.1990), reh’g denied, 921 F.2d 283 (11th Cir.1990); Keel v. U.S. Dep’t of Air Force, 256 F.Supp.2d 1269, 1279 n. 27 (M.D.Ala.2003); Cantrell v. Jay R. Smith Mfg. Co., 248 F.Supp.2d 1126, 1131 n. 21 (M.D.Ala.2003); Chase v. Kawasaki Motors Corp., U.S.A., 140 F.Supp.2d 1280, 1286 (M.D.Ala.2001). Sanders failure to make this argument means that this Court need not address it. . Based on the evidentiary record before" }, { "docid": "15366152", "title": "", "text": "sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). To prevail on a Title VII claim, a plaintiff must prove that the defendant acted with discriminatory intent. Hawkins v. Ceco Corp., 883 F.2d 977, 980-981 (11th Cir.1989); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir.1983). Such discriminatory intent may be established either by direct evidence or by circumstantial evidence meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.1997); Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.1984). Evidence that merely “suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence” is, by definition, circumstantial. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990). When relying on circumstantial evidence, a plaintiff is first required to create an inference of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1310, reh’g denied and opinion superseded in part, 151 F.3d 1321 (11th Cir.1998); Combs, 106 F.3d at 1527. Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Jones, 137 F.3d at 1310-1311; Holifield, 115 F.3d at 1562 (citations omitted); see Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089. Once the plaintiff establishes a prima facie case, the defendant must “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Jones, 137 F.3d at 1310. This burden is “exceedingly light” in comparison to the burden required if the plaintiff has presented direct evidence of discrimination. Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir.1988). If the defendant is able to carry this burden and explain its rationale, the plaintiff, in order to prevail, must then show that the proffered reason is merely a pretext" }, { "docid": "15366188", "title": "", "text": "direct evidence of any discriminatory intent on behalf of the Eye Center; thus, her claim of discriminatory treatment on the basis of her gender rests purely on circumstantial evidence and must be analyzed under the McDonnell Douglas-Burdine framework. Under this framework, a plaintiff can generally establish a prima facie case of unlawful discrimination under Title VII by showing that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action by her employer; (3) she was qualified for the job in question, and (4) her employer treated similarly situated employees outside her protected classification (ie. those of a different sex) more favorably than it treated her. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir.1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). Defendants do not dispute that Plaintiff can fulfill the first three elements of a prima facie case. Assuming that Plaintiff were able to establish that she was subjected to an adverse job action because she was constructively discharged, which the Court already has found that she cannot, see Discussion supra at 49-54, the Court finds that she cannot show that a similarly situated male employee was treated more favorably than she was, and her gender discrimination claim fails for that reason as well. When a plaintiff attempts to establish a claim of discrimination by pointing to more favorable treatment toward other employees, the plaintiff first must identify an employee outside of her protected class to which she is “similarly situated in all relevant respects.” Holifield, 115 F.3d at 1562; see also Knight v. Baptist Hospital of Miami, 330 F.3d 1313, 1316 (11th Cir.2003); Silvera v. Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir.2001). If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate when no other evidence of discrimination is present. Holifield, 115 F.3d at 1562. In addition, the plaintiff must point to evidence that the identified comparator committed the same or similar infractions as the plaintiff," }, { "docid": "13217751", "title": "", "text": "plaintiffs evidence of retaliation is entirely circumstantial, the burden of proof shifts between the parties in accordance with the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Brown, 597 F.3d at 1181 (11th Cir. 2010); Bryant v. Jones, 576 F.3d 1281, 1307-08 (11th Cir. 2009). Initially, the employee must establish a prima facie case by demonstrating the following essential elements: (1) the employee was engaged in statutorily protected activity; (2) the employee suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)). “Once a prima facie case has been established, the [employer] may come forward with legitimate reasons for the employment action to negate the inference of retaliation.” Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (citing Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525-26 (11th Cir. 1991)). If the employer is able to advance legitimate reasons for the adverse employ ment action, the burden shifts baek to the employee to demonstrate, by a preponderance of the evidence, that the employer’s reasons are pretextual. Id.; Bryant, 575 F.3d. at 1308. “[A]t this stage ... the plaintiffs burden ... merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (internal quotation marks omitted). 1. Furcron’s Prima Facie Case As to the prima facie case itself, the Magistrate Judge concluded, and the district court agreed, that Furcron did not establish that she was entitled to benefit from a presumption of discrimination. Although the court found that Furcron satisfied the “adverse employment action” and “causal link” elements, it determined she failed to present sufficient evidence that she had opposed an unlawful employment practice. In the" }, { "docid": "20222847", "title": "", "text": "Discrimination Act, Title VII prohibits em ployers from discriminating against employees because of pregnancy. 42 U.S.C. § 2000e-2(a)(l)-(2) (prohibiting discrimination “because of ... sex”); id. § 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy ....”). We use the same analysis for other claims of discrimination based on pregnancy that we use for claims of discrimination based on sex. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir.1994). A plaintiff may use either direct or indirect evidence to show that her employer discriminated against her because of her pregnancy. See id. at 1313. “Direct evidence is evidence, that, if believed, proves the existence of a fact without inference or presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.2004) (alterations and quotation marks omitted). “Indirect evidence is circumstantial evidence.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012). Williams argues that she has shown Baxter’s discriminatory intent by both direct and indirect evidence. B. We do not have to decide whether Williams has presented direct evidence because she has presented enough indirect or circumstantial evidence to survive summary judgment. A plaintiff typically makes a case of discrimination through indirect evidence using the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Armstrong, 33 F.3d at 1314. Under that framework, the plaintiff must make a prima facie case by showing that: (1) she is a member of a protected group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) employment or disciplinary policies were differently applied to her. See id. If a plaintiff can present a prima facie ease through circumstantial evidence, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions. See Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir.2010). If" }, { "docid": "20836872", "title": "", "text": "verdicts. We remand for the district court to reinstate the verdict against the Transit Authority on Connelly’s claim of retaliation. B. The District Court Did Not Err When It Entered Summary Judgment in Favor of King on the Claim of Racial Discrimination. Connelly makes two arguments that the district court erred when it granted summary judgment against his claim of racial discrimination, but both fail. We address only Connelly’s arguments about his claim of discrimination against King because the reinstatement of the jury verdict against the Transit Authority for retaliation renders moot Connelly’s arguments about his claims of discrimination against the Transit Authority. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1279 (11th Cir.2008) (explaining that a plaintiff may recover only once for wrongful termination under alternate theories of liability (citing Edwards v. Bd. of Regents of Univ. of Ga., 2 F.3d 382, 382-83 (11th Cir.1993))). We address each of Connelly’s arguments about his claim of discrimination against King in turn. Connelly first argues that the district court erred when it ruled that he failed to establish a prima facie case under the framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), but we disagree. To establish a prima facie case of racially discriminatory discharge, Connelly had to prove that “he was a member of a protected class; he was qualified for the job; he was terminated despite his qualifications; and after his termination the position remained open and the employer continued to seek applicants of similar qualifications.” Evans v. McClain of Ga., Inc., 131 F.3d 957, 964 (11th Cir.1997); see also Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.2003) (stating that an employee must be “replaced by a person outside his protected class” to establish prima facie ease of discrimination (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824)). But his admission that he cannot “precisely” meet that standard foretells the result. The undisputed evidence establishes that King sought no applicants for Connelly’s position after his termination. Instead, she left Connelly’s position vacant" }, { "docid": "22211263", "title": "", "text": "Educ., 99 F.3d 1078, 1083 (11th Cir.1996)] (observing that a “ ‘plaintiff must, by either direct or circumstantial evidence, demonstrate by a preponderance of the evidence that the employer had a discriminatory intent’ ” to prove a disparate treatment claim) (quoting Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir.1994)). “Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998) (citing Carter v. City of Miami, 870 F.2d 578, 580-81 (11th Cir.1989)). Absent direct evidence, a plaintiff may prove intentional discrimination through the familiar McDonnell Doug las paradigm for circumstantial evidence claims. Under the rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), [[[t]o establish a prima facie case of discriminatory failure to promote, a plaintiff must prove: (1) that he is a member of a protected class; (2) that he was qualified for and applied for the promotion; (3) that he was rejected; and (4) that other equally or less qualified employees who were not members of the protected class were promoted.” Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th Cir.1997) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988)). Once these elements are established, the defendant has the burden of producing a legitimate, non-discriminatory reason for the challenged employment action. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.1997) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If such a reason is produced, a plaintiff then has the ultimate burden of proving the reason to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; Combs, 106 F.3d at 1528 (plaintiff “has the opportunity to discredit the defendant’s proffered reasons for its decision”). In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000), the Supreme Court explained that “a plaintiffs prima facie case, combined with sufficient evidence to find that the" }, { "docid": "22107734", "title": "", "text": "law.” Fed.R.Civ.P. 56(c). In making this assessment, the Court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997), and “must resolve all reasonable doubts about the facts in favor of the non-movant,” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990). B. Proving Discrimination Through Circumstantial Evidence As an initial matter, Appellees argue the district court’s conclusion that Rioux established a prima facie case of discriminatory demotion was in error. Thus, we turn to this issue first. A plaintiff may prove a claim of intentional discrimination through direct evidence, circumstantial evidence, or through statistical proof. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990); Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1322-23 (11th Cir.2006) (two theories of intentional discrimination under Title VII are disparate treatment discrimination and pattern or practice discrimination; disparate treatment claims may be proven with direct or circumstantial evidence). Rioux offered only circumstantial evidence in support of his claim of discrimination, and maintained in his summary judgment papers that he brought this consolidated case “solely under the McDonnell Douglas circumstantial evidence analysis.” Consequently, we use the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to evaluate the sufficiency of his claim. Under the McDonnell Douglas framework, a plaintiff must show an inference of discriminatory intent, and therefore carries an initial burden of establishing a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. Presenting a prima facie case is not onerous as it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (citations omitted). The successful assertion of a prima facie case then “creates a rebuttable presumption that the employer unlawfully discriminated against” the plaintiff. E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.2002) (citing" }, { "docid": "20385468", "title": "", "text": "to challenge in their opening brief the district court’s ruling that they did not establish the predominance of common issues because of variations in damages, the plaintiffs have abandoned any contention that the court erred in denying class certification on that ground. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.2012) (holding that the defendant waived an affirmative defense “by failing to list or otherwise state it as an issue on appeal”); Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir.2012) (“The law is by now well settled in this Circuit that a legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed.” (alteration and quotation marks omitted)); G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1263 n. 2 (11th Cir.2012) (“The Appellants do not appeal the district court’s dismissal of the non-IDEA claims and have therefore abandoned any claim that the district court erred in doing so.”); Mesa Air Grp., Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1130 n. 7 (11th Cir.2009) (holding that an argument not made in the initial brief is waived); SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.Cir.2006) (“[Arguments not raised in the opening brief are waived.”); United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir.2003) (“Under our caselaw, a party seeking to raise a claim or issue on appeal must plainly and prominently so indicate. Otherwise, the issue — even if properly preserved at trial — will be considered abandoned.”); Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n. 3 (11th Cir.1987) (“[I]ssues that clearly are not designated in the appellant’s brief normally are deemed abandoned.”). As we have said, “it is not unduly harsh or overly burdensome to require parties to raise issues in their initial briefs.” United States v. Smith, 416 F.3d 1350, 1354-55 (11th Cir.2005) (quotation marks omitted). It is not too much to ask. The plaintiffs did argue in them opening brief that “[t]he district court’s erroneous holding that T-Mobile did" }, { "docid": "12589960", "title": "", "text": "Space Admin. v. Nelson, 562 U.S. 134, 147 n. 10, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011); see also Walker v. Prince George’s Cnty., Md., 575 F.3d 426, 429 n. * (4th Cir.2009) (“Judges are not like pigs, hunting for truffles buried in briefs.”). In addition, using the majority’s new rule, appellants may now launch late-in-the-day challenges to any part of a district court’s certification decision so long as they serendipitously cited a case canvassing Rule 28 in their opening brief. This “preservation-by-citation” approach renders the waiver rule a nullity. D. In the end, the majority declares itself unwilling to exercise its “discretion” to “discard years of litigation on appeal because of an inartful brief.” Maj. op. at 920. That approach seems to give pro se litigant treatment to a brief crafted by. experienced class counsel — counsel that has appeared in our court before. Surely it does not expect too much from veteran counsel to ask them to make their arguments straight up and square. All the more so when these counsel have been specifically cautioned about waiver on previous occasions. See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972-73 (11th Cir.2008) (holding that party represented by same counsel had “abandoned” claim by failing to raise it in his opening brief); see also Angles v. Dollar Tree Stores, Inc., 494 Fed.Appx. 326, 330 n. 6 (4th Cir.2012) (same); cf. Bennett, 656 F.3d at 821 (holding that party represented by same counsel had “essentially abandoned” argument by making only a “conclusory challenge”); Anderson v. Cagle’s, Inc., 488 F.3d 945, 959 (11th Cir. 2007) (same). The “purpose” of the preservation rule is also not served by overlooking Plaintiffs’ waiver. See maj. op. at 919-20. The rule “ensures that the opposing party has an opportunity to reflect upon and respond in writing to the arguments that his adversary is raising.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir.2012); see also United States v. Leeson, 453 F.3d 631, 638 n. 4 (4th Cir. 2006) (noting that late arguments are “unfair to the appellee”); Pignons S.A. de" }, { "docid": "6000601", "title": "", "text": "U.S.C. § 623(a)(1). The district court granted summary judgment in favor of Takeda because Ms. Kragor did not present sufficient evidence from which a jury could conclude that Takeda’s proffered nondiseriminatory reason for the termination — that Ms. Kragor violated (or appeared to violate) the company’s conduct policies — was pretextual. See generally Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir.2000) (en banc) (“In order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer’s proffered nondiseriminatory reasons is pretextual.”). Ms. Kragor then appealed. II We exercise plenary review of the district court’s grant of summary judgment, viewing all the evidence, and drawing all reasonable factual inferences, in favor of Ms. Kragor. See Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008). Summary judgment is appropriate only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Dixon v. Hallmark Cos., Inc., 627 F.3d 849, 854 (11th Cir.2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A A claim of unlawful age discrimination under the ADEA may be established through direct or circumstantial evidence. See Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir.2008). When such a claim is based on circumstantial evidence, we analyze the allocation of burdens and the presentation of proof under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Chapman, 229 F.3d at 1024 (applying McDonnell Douglas to evaluate ADEA claims); Mauter v. Hardy Corp., 825 F.2d 1554, 1556 (11th Cir.1987) (same). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination, which “in effect creates a presumption that the employer unlawfully discriminated against the employee.” Tex. Dep’t of" }, { "docid": "22868994", "title": "", "text": "was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case. Accordingly, the plaintiffs failure to produce a comparator does not necessarily doom the plaintiffs case. Rather, the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (declaring that, in cases where a plaintiff cannot establish a prima facie case, summary judgment only will be “appropriate where no other evidence of discrimination is present.” (citations omitted)); Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir.2011) (“To avoid summary judgment ... the plaintiff must produce sufficient evidence, either direct or circumstantial, to create a triable question of intentional discrimination in the employer’s decision.”). A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents “a convincing mosaic of circumstantial evidence that would allow a jury to infer[ ] intentional discrimination by the decisionmaker.” Silverman, 637 F.3d at 734 (citations and internal quotation marks omitted); see also James v. N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir.2000) (“[T]he way to tell whether a plaintiffs case is sufficient to sustain a verdict is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination.”). A plaintiff may raise a reasonable inference of the employer’s discriminatory intent through various forms of circumstantial evidence. Rioux v. City of Atlanta, 520 F.3d 1269, 1281 (11th Cir.2008) (holding that the plaintiff established a prima facie case of racial discrimination when he did not present evidence of a comparator but presented other circumstantial evidence that was sufficient); see also Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.2010) (stating that the circumstantial evidence necessary to present a Title VII case of discrimination under McDonnell Douglas is “flexible and depend[s] on the particular situation” (citations omitted)); cf. Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1325 (11th Cir.2006) (affirming the district" } ]

[ { "docid": "12683509", "title": "", "text": "2255 motions on the merits even if the filings were possibly untimely. See Holman v. Cason, No. 04-CV-60087-AA, 2005 WL 2313879, at *4 (E.D.Mich. Sept.22, 2005) (unpublished) (declining “to dismiss [the] Petitioner’s ha-beas petition on the basis of the statute of limitations because it [was] easier to deny relief on the merits than to figure out the issues relating to the statute of limitations”) (citation and quotation marks admitted); Crews v. Cason, No. 04-CV70841-DT, 2005 WL 2123729, at *4 (E.D.Mich. Aug.31, 2005) (unpublished) (same). We will follow the same course in this appeal, and will now turn to Pough’s ineffective-assistance-of-counsel claims. C. The district court correctly determined that Pough’s trial counsel did not render ineffective assistance Under the familiar standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Pough must prove that (1) his trial “counsel’s representation fell below an objective standard of reasonableness,” id. at 687-88, 104 S.Ct. 2052, and (2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The Supreme Court has modified Strickland’s prejudice prong in the context of guilty pleas, holding that a defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and instead would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In evaluating whether an attorney’s performance was constitutionally deficient, we recognize “that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. We “also must not indulge in hindsight, but must evaluate the reasonableness of counsel’s performance within the context of the circumstances at the time of the alleged errors.” McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir.1996), overruled on other grounds, In re Abdur’ Rahman, 392 F.3d 174 (6th Cir.2004) (en banc). Defendants alleging the ineffective assistance of counsel bear “a heavy burden" } ]

[ { "docid": "23047605", "title": "", "text": "cannot be relied on as having produced a just result.” 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective-assistance-of-counsel claim, a petitioner must establish two things. First, he must prove that counsel’s performance was deficient. “Second, the [petitioner] must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. at 2064. We echo the caution sounded by the Court in Strickland: “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Id. at 693, 104 S.Ct. at 2067. We also note the absence of any iron-clad rule requiring a court to tackle one prong of the Strickland test before the other. Indeed, we previously have concluded that because both parts of the test must be satisfied to show a Sixth Amendment violation, a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000). In order to prove the deficient performance prong of the Strickland test, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. “Judicial scrutiny of counsel’s performance must be highly deferential” and there is a “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. Indeed, as we have said, “[t]he test for ineffectiveness is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more. Instead, the test is ... whether what [counsel] did was within the wide range of reasonable professional assistance.” Waters, 46 F.3d at 1518 (quotation marks and citation omitted). In order to establish that counsel’s conduct was unreasonable, therefore, the petitioner must prove “that no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.2000)" }, { "docid": "15147916", "title": "", "text": "Delap argues that this lack of witnesses at trial, along with counsel’s failure to “offer any coherent line of defense to the jury,” constituted ineffective assistance of counsel in violation of the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs this court’s examination of ineffective assistance of counsel claims. In Strickland, the Court held that in order for an ineffective assistance claim to succeed, “the defendant must show that counsel’s performance was deficient,” i.e. “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 697, 104 S.Ct. at 2064. The reviewing court must determine whether, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance” demanded of attorneys in criminal cases. Id. at 690, 104 S.Ct. at 2066. Strickland also requires the deficient performance to have prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. To establish prejudice, a defendant must show a reasonable probability that the result of the proceeding would have been different but for counsel’s unprofessional errors. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068. With regard to the first part of the Strickland test, a reviewing court must strongly presume that counsel’s conduct falls within the wide range of reasonably professional assistance. Id. at 689-90, 104 S.Ct. at 2065-66. “The appropriate legal standard is not error-free representation, but ‘reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.’ ” Foster v. Dugger, 823 F.2d 402, 405 (11th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988), quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. “Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The district court, after offering Delap an evidentiary hearing on this issue, concluded both that the performance of counsel was within the wide range of professional competence and that Delap" }, { "docid": "5445634", "title": "", "text": "cognizable in a habeas proceeding. Moreover, even if cognizable, the premise of Torres’ claim is that defense counsel did not get the redacted affidavit and no Seychel hearing was held. In fact, as discussed above, a Seychel hearing was held, and a redacted version of the affidavit was provided to defense counsel, with only two paragraphs redacted. (See, e.g., Tsunis Aff.Ex. D: State 1st Dep’t Br. at 72: “defendants received redacted copies of the search warrant affidavit which omitted only the two paragraphs which would have identified the informant(s) if disclosed,” citing Seychel Hr’g Tr. 310, 314-15.) The Court should deny Torres’ Fourth Amendment/Bradt/ claim. V. TORRES RECEIVED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL A. The Strickland v. Washington Standard The Supreme Court has announced a two-part test to determine if counsel’s assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy” Id. at 689, 104 S.Ct. at 2065 (citation omitted). Second, the defendant must show prejudice from counsel’s performance. Id. at 687, 104 S.Ct. at 2064. The “question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable" }, { "docid": "14828937", "title": "", "text": "v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The benchmark for judging such a claim is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U.S. at 686, 104 S.Ct. at 2064. The ultimate focus is on the fundamental fairness of the trial. Id. at 699, 104 S.Ct. at 2070-71. An ineffective assistance of counsel analysis has two components: 1) was counsel’s performance deficient; and 2) did the deficient performance prejudice the defendant. Id. at 687, 104 S.Ct. at 2064. In a capital case, this analysis applies to both the guilt phase and the penalty phase. Id. at 687-88, 104 S.Ct. at 2064-65. To demonstrate deficiency in an attorney’s performance, a defendant must show “that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. This requires a showing that the attorney’s errors were so serious that the defendant was denied the “counsel” guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. Judicial scrutiny of attorney performance is highly deferential. Id. at 689, 104 S.Ct. at 2065. The court must make every effort to evaluate an attorney’s conduct from the perspective of the time it occurred, not in hindsight, with all of its inherent distortions. Id. “A court must indulge a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Even if a professionally unreasonable error occurred, the error will not result in reversal if the error had no effect on the judgment of the case. Id. at 691, 104 S.Ct. at 2066-67. To prove prejudice, a defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is one that undermines confidence in the outcome. Id. “It is not" }, { "docid": "3494461", "title": "", "text": "habeas courts did not err in concluding that, pursuant to Supreme Court precedent, Carter could not establish that his confession was involuntary. Therefore, there is no need for an evidentiary hearing on this question. VII. Carter raises a litany of ineffective assistance claims, urging that his court-appointed trial counsel were constitutionally defective at both the guilt and punishment stages of the trial. Carter is unable, however, to overcome the rigorous burden of proof required to demonstrate ineffective assistance. A. A habeas petitioner alleging ineffective assistance of counsel must demonstrate both constitutionally deficient performance by counsel and actual prejudice as a result of such ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert. denied, 513 U.S. 960, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994) (summarizing the Washington standard of review). Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. To establish deficient performance, the petitioner must prove that the performance of counsel fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064-65. Therefore, courts may not fall prey to “the distorting effect of hindsight” but must be “highly deferential” to counsel’s performance. Id. at 689-90, 104 S.Ct. at 2065-66. Hence, there is a strong presumption that the performance “falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. Carter has the burden to overcome this presumption. Moreover, even if counsel’s performance was deficient, Carter must affirmatively demonstrate actual prejudice. To do so, he must establish that the attorneys’ errors were so deficient as to render the verdict fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993); Washington, 466 U.S. at 687, 104 S.Ct. at 2064. In evaluating claims of ineffective assistance during the guilt stage of the trial, the petitioner must show a “reasonable probability” that the jury would have otherwise harbored a" }, { "docid": "1065300", "title": "", "text": "ineffectiveness of trial counsel in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court reiterated that the Sixth Amendment right to counsel guarantees effective assistance of counsel. Additionally, in United States v. Cronic, — U.S. —, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court held that “[t]he right to effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred”. Id. at 2045; accord Strickland, supra. A convicted defendant’s charge that he was denied effective assistance of counsel, to be successful, requires that the defendant prove: (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Id. The Supreme Court has cautioned, however, that judicial scrutiny of counsel’s performance must be highly deferential. A reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 2066 (citing Michel v. New York, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Accordingly, the first element of the Strickland analysis demands that a defendant show that the attorney’s efforts fell below an “objective standard of reasonableness ... under prevailing professional norms”. Id. 104 S.Ct. 2064. This requirement invokes the standard, long employed by this circuit, that “[d]efense counsel must perform at least as well as a lawyer with ordinary training and skill.... [Only] [d]efense strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent deny a criminal defendant the effective assistance of counsel”. Beasley, supra, 491 F.2d at 696. The second criterion of Strickland necessitates a showing by the defendant “that counsel’s errors were so serious as to deprive the defendant of a fair trial”. Strickland, supra, 104 S.Ct. at 2064. While the district court’s" }, { "docid": "8802911", "title": "", "text": "We therefore now turn to the merits of appellant’s petitions. III. Ineffective Assistance of Counsel Claim Appellant first claims that his attorney’s performance at trial in case number 85-29 was constitutionally inadequate, depriving him of his Sixth Amendment right to counsel. Specifically, appellant contends that Mr. James was ineffective because he failed to investigate the case and because he failed to perfect a direct appeal of appellant’s conviction. The ultimate question of whether a defendant received ineffective assistance of counsel is an issue of law which we review de novo. Minner v. Kerby, 30 F.3d 1311, 1316 (10th Cir.1994). A district court’s findings of historical fact in regard to an ineffective assistance claim, however, are entitled to deference. Denton v. Ricketts, 791 F.2d 824, 827 (10th Cir.1986). Moreover, we review a district court’s factual findings based on live testimony presented at the evidentiary hearing only for clear error. Archuleta v. Kerby, 864 F.2d 709, 711 n. 2 (10th Cir.), cert. denied, 490 U.S. 1084, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989). To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that his attorney “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. To do so, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Second, the defendant must demonstrate that his counsel’s deficiencies were prejudicial to his defense- — “that counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. at 2064. Furthermore, our “scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065. As a reviewing court, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant" }, { "docid": "2553776", "title": "", "text": "judgment. Neither party claims that Moore’s claim for ineffective assistance of counsel was not adjudicated on the merits by the state court. Having so found, we next turn to the ultimate question of whether, under the newly amended standards of review set forth in the AEDPA, Moore is entitled to habeas corpus relief because he received ineffective assistance of counsel during the punishment phase of his trial. Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): First, the defendant must show that counsel’s performance was deficient. This requires showing that, counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. at 2064. In deciding whether counsel’s performance was deficient, we apply a standard of objective reasonableness, keeping in mind that judicial scrutiny of counsel’s performance must be highly deferential. Id. at 686-689, 104 S.Ct. at 2064-65. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the, circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. at 2065. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (citations omitted). Ultimately, the focus of inquiry must be on the fundamentar fairness of the proceedings whose result is being" }, { "docid": "1957321", "title": "", "text": "at 86-95; Franza Traverse Br. at 15-16), and (2) the trial court’s denial of his CPL § 440.10 motion violated his due process and equal protection rights (Pet. ¶ 12(A); Franza Br. at 73-86; Franza Traverse Br. at 1-15). The underpinning of Franza’s claims is that he “was framed,” there was a conspiracy between the prosecutor and defense counsel to use false evidence, and the “Trial Court was clearly biased against [Franza], working for the State.” (See Franza 2/12/99 Reply Aff. ¶¶ 3, 4, 7, 9,13,15.) ANALYSIS I. FRANZA’S APPELLATE COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND V. WASHINGTON TEST A. The Strickland v. Washington Standard The Supreme Court has announced a two-part test to determine if counsel’s assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. This performance is to be judged by an objective standard of reasonableness. Id., 466 U.S. at 688, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of rea sonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. 466 U.S. at 689, 104 S.Ct. at 2065; accord, e.g., Torres v. Irvin, 33 F.Supp.2d 257, 277 (S.D.N.Y.1998) (Cote, D.J. & Peck, M.J.). Second, the defendant must show prejudice from counsel’s performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The “question is whether there is a reasonable probability that, absent the" }, { "docid": "7499252", "title": "", "text": "the record in this case indicates that the Court fulfilled its obligations with respect to obtaining defendant’s voluntary, knowing and intelligent waiver on the record. 3. Ineffective Assistance of Counsel Even if defendant had not waived his light to conflict-free representation, he would be unable to demonstrate a violation of his Sixth Amendment rights. The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). This does not mean that nothing short of acquittal—in a sense, the most effective assistance of counsel—will satisfy the Sixth Amendment. Rather, assistance of counsel must be effective in that it ensures the “proper functioning of the adversarial process [such] that the trial [can] be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). According to Strickland, A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fantrial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. at 2064. Counsel’s performance is only deficient if it falls below “an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. at 2064. Such a determination is made “considering all the circumstances.” Id. at 688, 104 S.Ct. at 2065. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (citing Michel" }, { "docid": "1895325", "title": "", "text": "Ineffective Assistance of Counsel In order to sustain a claim of ineffective assistance of counsel, petitioner must prove both prongs of the test pronounced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). One prong of the Strickland test requires petitioner to demonstrate that his trial counsel’s performance was deficient. This first prong involves showing that his trial counsel’s errors or omissions were so serious that trial counsel did not function as “counsel” as guaranteed by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The other prong of the Strickland test requires petitioner to demonstrate that his trial counsel’s deficient performance prejudiced his defense at trial. This second prong involves a’ showing that petitioner’s trial counsel’s errors were so serious that they deprived petitioner of a fair trial and a just result. Id. If petitioner fails to satisfy either part of the Strickland test, there is no need to evaluate the other prong of the test. Id. (a) Deficiency of Performance The respondents argue that the magistrate judge erred in concluding that petitioner’s trial counsel’s performance was deficient because of a failure to investigate. After examining the respondents’ objections, the court agrees with the magistrate judge’s conclusion. In assessing this prong of the Strickland test, the court must determine whether “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. Judicial scrutiny of the reasonableness of counsel’s performance must be “highly deferential” and the court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged actions or omissions might be considered sound trial strategy.” Id. at 689,104 S.Ct. at 2065. The court must measure the reasonableness of counsel’s performance after viewing all the circumstances in light of the prevailing professional norms. Id. at 688, 104 S.Ct. at 2064. This measurement must be evaluated on the facts of the case at the" }, { "docid": "6620558", "title": "", "text": "petitioner’s request that the appeal be argued orally; and (d) failed to challenge the jury instruction on intent. With respect to (a), in order to determine whether appellate counsel was constitutionally deficient in not arguing that trial counsel was constitutionally deficient, we need to review trial counsel’s performance itself. The standards for evaluating a claim of ineffective assistance have been delineated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court explained there that the purpose of the Sixth Amendment’s requirement of effective assistance of counsel is to ensure a fair trial, so that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. The Court stated that on a claim of ineffective assistance a petitioner must demonstrate two elements. First, he must show that counsel’s performance was deficient to the extent that the errors made were not within the realm of reasonableness under the professional norms prevailing at the time of trial. Id. at 687-88, 104 S.Ct. at 2064-65. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable profession al assistance,” and that counsel has “made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. at 2066. Petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). The second element that must be shown on an ineffective assistance claim is prejudice. If petitioner can establish that his counsel’s performance fell below the prevailing professional norms, he must also show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. 466 U.S. at 694, 104 S.Ct. at 2068. The Court defined a reasonable probability as “a probability sufficient" }, { "docid": "22102472", "title": "", "text": "assistance of counsel as guaranteed by the Sixth Amendment, we would have to find that the conduct of defendant’s counsel “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court adopted a two-part test to determine whether the Sixth Amendment has been violated. A defendant must show: (1) “that counsel’s performance was deficient,” with reference to “prevailing professional norms,” and (2) “that the deficient performance prejudiced the defense.” Id. at 687-88, 104 S.Ct. at 2064-65. Prejudice is shown “by demonstrating that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). We approach this review with considerable restraint. As the Supreme Court in Strickland noted: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We also keep in mind that the defendant bears the burden of proving that his counsel’s performance was both deficient and prejudicial within the meaning of Strickland. Kimmelman, 477 U.S. at 381, 106 S.Ct. at 2586. Here, defendant has failed to overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see also Kimmelman, 477 U.S. at 381, 106 S.Ct. at 2586; United States v. Jones, 852 F.2d 1275, 1277 (10th Cir.1988). Defendant’s allegation of ineffective assistance of counsel centers largely upon the allegation that his first counsel, Mr. Meier, did not adequately prepare for trial. However, Meier" }, { "docid": "3355529", "title": "", "text": "Because Rodriguez does not specify which “errors” appellate counsel allegedly failed to raise on appeal, the Court presumes Rodriguez refers to the same errors he complained of in his state eoram nobis action. ANALYSIS RODRIGUEZ’S HABEAS CORPUS PETITION SHOULD BE DENIED BECAUSE HE HAS FAILED TO PROVE THAT HIS APPELLATE COUNSEL WAS INEFFECTIVE A. The Strickland v. Washington Standard The Supreme Court has announced a two-part test to determine if counsél’s assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors So serious that he was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after convic-tion____ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time____ [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. Second, the defendant must show prejudice from counsel’s performance. Id. at 687, 104 S.Ct. at 2064. The “question is whether there is a rfeasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. at 2068-69. Put another way, the “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. In making this' determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the -factual findings will have been unaffected by the errors, and factual findings that were affected will have" }, { "docid": "2636210", "title": "", "text": "and the district court. None of those courts found Clozza’s trial counsel to be guilty of a lack of reasonably effective assistance under prevailing professional norms. Our own review of the record also indicates the claim lacks merit. A review of the performance of trial counsel for a criminal defendant begins with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a court must evaluate an attorney’s performance by the \"objective standard of ‘reasonably effective assistance’ under ‘prevailing professional norms.’ ” Briley v. Bass, 750 F.2d 1238, 1247 (4th Cir.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985), quoting Strickland, 466 U.S. at 687, 688, 104 S.Ct. at 2064, 2065. Strickland goes on to say: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s' assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.\" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). Moreover, even if the defendant shows that trial counsel was deficient, [t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. With these standards in mind, we turn to Clozza’s claims of ineffective assistance of" }, { "docid": "9582207", "title": "", "text": "and failed to appear to consummate the deal on the designated day. The government thus had no cocaine to show, but proved its case through the recordings. Id. at 1302. Petitioner’s Burden The arguments properly before this court fail on their merits. Those arguments are evaluated against the heavy burden of proof the law imposes. Argencourt must demonstrate both that trial counsel’s performance fell below an objective standard of reasonable effectiveness, and that counsel’s deficient performance was so prejudicial as to undermine confidence in the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). In determining whether trial counsel’s performance fell below the relevant objective benchmark, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and “every effort [should] be made to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)); Lema, 987 F.2d at 51. The “prejudice” element of an ineffective assistance claim also presents a high hurdle. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. The requisite showing of prejudice requires more than postulating that counsel’s “errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. at 2067. Rather, Argencourt must affirmatively prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Argencourt has demonstrated neither objectively ineffective assistance" }, { "docid": "8292923", "title": "", "text": "claims of ineffective assistance of counsel under the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.1988). To satisfy this test, a petitioner “[f]irst ... must show that [his] counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Second, the petitioner “must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. “This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Id. To do so, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Importantly, “judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. When evaluating the first Strickland criterion, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.; accord Bridge, 838 F.2d at 773. Further, we must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We have explained that the objective standard of reasonableness to which counsel are held requires that they “ ‘research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.’ ” Conley, 349 F.3d at 841 (quoting United States v. Phillips, 210 F.3d 345, 348 (5th Cir.2000)). Thus, “[s]olid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court’s attention.” Id. Although “a failure of counsel to be aware of prior controlling precedents in even a single prejudicial" }, { "docid": "23511528", "title": "", "text": "that Mitchell provided effective assistance of counsel. Petitioner maintains he received constitutionally ineffective assistance of counsel because Mitchell: (1) did not investigate an ineompetency or insanity defense, and (2) lied about DNA evidence to Petitioner’s sisters. “A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995). “We accept the factual findings of the district court unless they are clearly erroneous.” Id. The two-part inquiry of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs our review of an ineffective assistance of counsel claim. To support his claim for ineffective assistance of counsel, Petitioner must show that: (1) his attorney’s performance was constitutionally deficient, and (2) this deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064; United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995). “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Consequently, the first prong of the Strickland test requires us to determine whether “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Our “scrutiny of counsel’s performance must be highly deferential” and avoid “the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065. We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. If we determine that counsel’s performance was constitutionally deficient, we proceed to the second prong of Strickland, the prejudice inquiry. In measuring prejudice, the relevant question is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068; see also Brewer, 51 F.3d at 1523. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. The Court discussed the broad duty" }, { "docid": "11724898", "title": "", "text": "I had to roll on the floor to go, I would roll on the floor to go.” Id. at 1497. The district court noted that defense counsels’ failures were understandable because of their inexperience, the limited preparation time available to them after a belated appointment, the intense media focus and their concentration on the guilt phase. However, the court held such failure deprived Mak of his Sixth Amendment right to effective assistance of counsel. Id. at 1501. In Strickland v. Washington, 466 U.S. 668, 678, 687, 104 S.Ct. 2052, 2059-60, 2064, 80 L.Ed.2d 674 (1984), a case, like Mak, in which petitioner sought reversal of a death penalty conviction based on trial counsel’s failure to present certain mitigating evidence during the sentencing proceedings, the Supreme Court established a two-part test to determine when the Constitution requires a criminal judgment be overturned because of ineffective assistance of counsel: (1) deficiency of trial counsel’s performance, and (2) a showing that the deficient performance 'prejudiced the defense. Deficiency of Performance To prove deficiency of performance, the defendant must show counsel made errors so serious that performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687-88, 104 S.Ct. at 2064. “Judicial scrutiny of counsel’s performance must be highly deferential_[requiring] that every effort be made to eliminate the distorting effects of hindsight.... and [demanding] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Id. at 689, 104 S.Ct. at 2065. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). In prior Supreme Court and Ninth Circuit cases dealing with failure to admit mitigating evidence where performance has been found reasonable, the attorneys had consciously decided not to present mitigating evidence because of reasonable tactical evaluations — specifically, they determined the evidence would have opened the door to damaging rebuttal evidence. By contrast, in the present case, the district court found Mak’s counsel made no such tactical" }, { "docid": "3949565", "title": "", "text": "that a witness who testified against him had ingested drugs on the day she testified. The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) articulated the standard under which ineffective assistance of counsel claims are to be evaluated. The Supreme Court held that the “benchmark for judging any claim of ineffective assistance of counsel must be whether counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064. Strickland provided a two-step analysis under which the defendant must show counsel’s performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Under the first prong of the test, the reviewing court must determine whether trial counsel provided “reasonably effective” assistance considering all the circumstances. The defendant must show that counsel’s representation fell below an objective standard of reasonableness. 466 U.S. at 687, 104 S.Ct. at 2064. Strickland and the cases following it have made it clear that the defendant has a heavy burden in proving a claim of ineffectiveness of counsel. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. See also, United States v. Buchbinder, 796 F.2d 910 (7th Cir.1986). Judicial scrutiny of counsel’s performance should be highly deferential. Reviewing courts are to presume that counsel’s conduct falls within the range of reasonable, professional conduct. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Counsel’s conduct must be judged in light of all the circumstances as of the time the action was taken and not as a result of hindsight. 466 U.S. at 690, 104 S.Ct. at 2066. The defendant must demonstrate not only that counsel’s performance was professionally unreasonable, but also that it actually prejudiced his or her defense. “The defendant must" } ]

[ { "docid": "11968384", "title": "", "text": "DAWKINS, District Judge. Plaintiff, James B. Smith, alleging himself to be a “resident” of the State of Texas, brought this suit in the Alexandria Division of the Western District of Louisiana against B. S. Landis, Mrs. Zoe B. Snyder, John B. Snyder and Mrs. Zelma S. Pipes, “residents of the Parish of Franklin, La.” which is in the Monroe Division. In exceptions, defendants insisted the complaint failed to state the citizenship of either plaintiff or defendants, but merely the residence, and the action was brought in a division other than that where the defendants lived, but these were overruled and we think correctly so, because the action was one of a local nature, or in rem, involving real property which is located in Catahoula Parish, in the Alexandria Division, of which we can take notice. The nature of the case and the statement of what happened in the proceedings in the State Court, are so well and correctly stated by the lower judge, Honorable Gaston L. Porterie, now deceased, in his opinion reported in 106 F. Supp., beginning at page 264, the same will be adopted and is quoted down to the end of the second paragraph in the second column on page 266, as follows: “On August 19, 1927, one F. R. Wilson, in Suit No. 4590, petitioned the Seventh Judicial District Court of Louisiana, Catahoula Parish, for a judgment against J. B. Smith (complainant here) in the sum of $749.79, with 5% per annum interest thereon from judicial demand until paid, for work done by Wilson for Smith. Alleging Smith a resident of Bay Saint Louis, Mississippi, Wilson attached Smith’s properties — the properties involved in this action — in Catahoula Parish for the purpose of jurisdiction and further prayed that Smith be served through a curator ad hoc appointed by the court for that purpose. On the same day an order was signed appointing an attorney at law to represent Smith and ordering the issuance of the writ of attachment upon Wilson’s furnishing bond in the sum of $250. The attorney accepted the appointment and the $250" } ]

[ { "docid": "18439119", "title": "", "text": "been held under advisement until Mississippi v. Louisiana was decided. After the decision of the Supreme Court the District Court for the Western District of Louisiana, on motion for summary judgment, held that under the Supreme Court decree the Louisiana tax deed was void and the grantees acquired nothing by it. The cause was dismissed with prejudice. The defendants here assert that the decree of the Court sitting in Louisiana is controlling on the question in this case. It would seem that the District Court for the Western District of Louisiana, after determining that the land involved was situate in another state and another judicial district, should have dismissed the suit for lack of jurisdiction over the subject matter. 1 Barron & Holtzoff, Federal Practice and Procedure, Rules Ed., 137 et seq. § 72; Smith v. Landis, 5 Cir., 1954, 211 F.2d 166; Woolgar v. La Coste, D.C.W.D.La.1947, 69 F. Supp. 571. We think the judgment of the Court sitting in Louisiana is without validity. Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913; Equitable Trust Co. of New York v. Washington-Idaho Water, L. & P. Co., D.C.E.D.Wash.1924, 300 F. 601. If this be so then of course the judgment of the District Court of the Western District of Louisiana cannot be res judicata on the merits. Although of the opinion that the decree of the District Court for the Western District of Louisiana is not res judi-cata, we find ourselves in complete agreement with the conclusion which it reached as to the validity of the tax deed which is the primary muniment of the plaintiffs’ title. In the report of the Special Master in the case of Mississippi v. Louisiana, supra, it was stated: “The undisputed evidence showed that opposite the original mainland of Warren County, Mississippi, the land on the right or Louisiana bank of the Mississippi River at Diamond Point was eroded by action of the river over a long period of years and caved into the Mississippi River and disappeared. “Contemporaneously a point bar (Diamond Point Bar) was formed and built" }, { "docid": "3844498", "title": "", "text": "of the ADEA by ULM. The EEOC action was also consolidated with Vines’ and McGraw’s cases. ULM filed a motion for summary judgment seeking dismissal of all the remaining ADEA claims based upon Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). The district court concluded that it lacked jurisdiction over Vines’ and McGraw’s ADEA claims, but that the EEOC was not barred from asserting those claims on their behalf. Vines’ and McGraw’s state law claims were remanded to state court. The district court then granted ULM’s motion for summary judgment dismissing the EEOC lawsuit, finding that ULM’s policy did not violate the ADEA. The EEOC sought to appeal the judgment, but then voluntarily dismissed the appeal. ULM filed a peremptory exception of res judicata/collateral estoppel in the present case in state court, arguing that Vines and McGraw asserted the same claims and issues previously litigated and decided adversely to them in federal court. The Louisiana trial court granted the exception, dismissing the state claims with prejudice after finding that the federal principles of res judicata applied to , bar the suit. The court noted that the federal court decision was rendered by a court of competent jurisdiction, the decision was final and on the merits, the EEOC and the plaintiffs were in privity, and the causes of action -arose from the same nucleus of operative facts. The Second Circuit Court of Appeal in Louisiana reversed the trial court judgment, which had granted an exception of res judicata in favor of ULM, and reinstated the state court action, concluding that privity did not exist between Vines and McGraw and the EEOC. Vines v. Northeast La. Univ., 839 So.2d 979, 987 (La.App. 2 Cir. 3/5/03). ULM’s request for en banc rehearing in the Second Circuit and their application for writ to the Louisiana Supreme Court were denied. Vines v. Northeast La. Univ., 853 So.2d 638, 638 (La.9/19/03). ULM filed a motion under the “relitigation exception” of the Anti-Injunction Act with the Western District of Louisiana seeking to enjoin Vines and McGraVs lawsuit in state" }, { "docid": "23365064", "title": "", "text": "court ‘must’ dismiss in the absence of an indispensable party and that it ‘cannot’ proceed without him puts the matter in the wrong way around: a court does not know whether a particular person is ‘indispensable’ until it has examined the situation to determine whether it can proceed without him.” Provident Trades-mens Bank & Trust Co. v. Patterson, supra, 390 U.S. at 119, 88 S.Ct. at 743, 19 L.Ed.2d at 950. See also Advisory Committee’s Notes to Amendments to Rules of Civil Procedure, 39 F.R.D. 69, 89-94 (1966); 2 Barron & Holtzoff, Federal Practice and Procedure § 511 et seq. (1967 Supp.); 3A Moore, Federal Practice, Chapter 19; Conn, “The New Federal Rules of Civil Procedure,” 54 Geo.L.J. 1206 (1966); Fink, “Indispensable Parties and the Proposed Amendment to Federal Rule 19,” 74 Yale L.J. 403 (1965); Note, “Rule 19 and Indispensable Parties,” 65 Mich.L.Rev. 968 (1967). Our venture into pragmatic analysis under Rule 19 necessitates critical evaluation of two controlling factors in this case: (1) the inability of the federal district court to finalize the litigation or to effectively adjudicate the rights of all concerned parties, and (2) the availability of adequate relief in the Louisiana state court system, which is highly competent to hear arguments concerning Louisiana land law. If the district court were to hear this case on the merits, its decision would merely begin rather than conclude litigation. For example, a reversal by this Court might logically be followed by ap-pellee’s suit for a partition to avoid paying any damages which might be due Mrs. Hebert. J. C. Trahan Drilling Contractor, Inc. v. Younger, Ct.App.La.1964, 169 So.2d 15. This, of course, would not prevent Mrs. Hebert’s filing a separate suit, and the probability of such action would increase proportionally with the amount of damages awarded in the district court below. On the other hand, even if the appellants were to lose below, Mrs. Hebert might wish to try her luck in a separate suit. By any combination or permutation, then, a reversal of the district court’s dismissal would engender further litigation, i. e., multiplicity of suits. In" }, { "docid": "18439115", "title": "", "text": "JONES, Circuit Judge. The plaintiffs, appellants here, claim ownership of lands in the area known as Diamond Point, situate in Warren County, Mississippi. They brought suit in the United States District Court for the Southern District of Mississippi against the defendants, appellees here, saying that the defendants had unlawfully taken possession of the land and refused to surrender it to the plaintiffs. A declaratory judgment was sought declaring the plaintiffs to be the owners of the land. The plaintiffs, by their complaint, alleged the source of their title to be a tax deed issued to them in April, 1949, by the Sheriff of Madison Parish, Louisiana. The tax deed described the land as being in Madison Parish, Louisiana, and is recorded in that Parish. Warren County, Mississippi, and Madison Parish, Louisiana, lie on opposite sides of the Mississippi River which is, for the most part, the boundary between the two states. The plaintiffs state in their complaint that the land involved was originally on the west of the Mississippi River and in the State of Louisiana, that although a change in the course of the river placed it west of the land, the land remained in Louisiana until, in 1955, as a result of the decree of the Supreme Court of the United States in the case of State of Mississippi v. State of Louisiana, 350 U.S. 5, 76 S.Ct. 29, 100 L.Ed. 6, rehearing denied 350 U.S. 905, 76 S.Ct. 175, 100 L.Ed. 794, “the lands became a part of Warren County, Mississippi.” It is the claim of the plaintiffs that they acquired title from the State of Louisiana at a time when the land was a part of Louisiana and that their title was not lost or divested when the land became a part of Mississippi. The defendants filed a motion to dismiss asserting that the question raised by the suit had been settled by State of Mississippi v. State of Louisiana, supra. Annexed to the motion are a number of exhibits. One of these is the Report of the Special Master to the Supreme Court in the" }, { "docid": "11102652", "title": "", "text": "several of the Objectors and must be addressed before the Court considers the merits of the proposed settlement. See Prou v. United States, 199 F.3d 37, 45 (1st Cir.1999) (“[T]he question of subject-matter jurisdiction is always open: courts at every stage of the proceedings are obligated to consider the issue ... ”). Lakeside argues that the court lacks jurisdiction by virtue of the “local action doctrine.” The doctrine was announced in federal jurisprudence in Livingston v. Jefferson, 15 F. Cas. 660 (C.C.D.Va.1811). In that case, Thomas Jefferson was sued in a federal court in Virginia for an alleged trespass to land located in Louisiana. The Court dismissed the matter, finding that the trespass was local to Louisiana and could not be brought in a Virginia court. Id. at 665. The Supreme Court later reiterated this reasoning in Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895), wherein it held that “an action for trespass upon land, like an action to recover the title or the possession of the land itself, is a local action, and can only be brought within the state in which the land lies.” Id. at 107, 15 S.Ct. 771. The Supreme Court found that the federal court in Ohio “had no jurisdiction of the cause of action” alleging a trespass upon land in West Virginia. Id. at 108, 15 S.Ct. 771. In determining whether the doctrine applies, Chief Justice Marshall stated that “[t]he distinction taken is, that actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere; but are local where their cause is in its nature necessarily local.” Livingston, 15 F. Cas. at 664. The Supreme Court subsequently described the distinction as akin to the difference between in personam and in rem jurisdiction. See Casey v. Adams, 102 U.S. 66, 68, 26 L.Ed. 52 (1880) (ruling that “[l]ocal actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated.”). Modern federal courts have consistently read Livingston to mean that “an" }, { "docid": "11643775", "title": "", "text": "of the forum that rendered the first judgment controls the res judicata analysis.” Laase, 638 F.3d at 856 (quotation omitted). Here, the United States District Court for the Western District of Louisiana, exercising its diversity jurisdiction, rendered the first judgment. As a matter of federal common law, we must give that federal diversity judgment the same claim-preclusive effect that Louisiana state courts would give to a state court judgment. Semtek Int’l., Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). Thus, we apply Louisiana’s res judicata rules to this action. “Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase ‘res judicata’ to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel).” Certified Fin., Inc. v. Cunard, 838 So.2d 1, 4 (La.Ct.App.2002). “[U]nlike issue preclusion, claim preclusion is much broader, encompassing a prohibition against relitigation of those matters which, not only, were litigated but, also, of those which could have been litigated.” Williams v. City of Marksville, 839 So.2d 1129, 1131 (La.Ct.App.2003). In Louisiana, a prior judgment has a claim preclusive effect if: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 843 So.2d 1049, 1053 (La.2003); La.Rev.Stat. § 13:4231 The parties only dispute elements four and five. 1. Cause of Action Existed at the Time of First Judgment Count VI of C.H. Robinson’s amended complaint in the Minnesota action sought a declaration that, as a result of the Louisiana judgment, Lobrano did not continue vesting under the 2008 and 2009 Restricted Stock Plans. “Implicit in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so.” Maschek v. Cartemps USA 896" }, { "docid": "23394081", "title": "", "text": "and transitory actions finds its American roots in Livingston v. Jefferson, 15 F.Cas. 660 (C.C.D.Va.1811) (No. 8411). In Livingston, a Louisiana landowner sued former president Thomas Jefferson in a federal court in Virginia for an alleged trespass to his land. The venerable Chief Justice John Marshall, sitting as a circuit judge, dismissed the action. Emphasizing that “actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere ... but are local where their cause is in its nature necessarily local,” Justice Marshall determined that an action for trespass to land in Louisiana was local and could not be heard in a Virginia court. Id. at 664. Since Livingston, the common law local action doctrine has become ingrained in American jurisprudence. State and federal courts alike have recognized and applied the rule. See, e.g., Louisville & N.R.R. v. Western Union Telegraph Co., 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356 (1914); Ellenwood v. Marietta Chair Co., 158 U.S. 105, 107, 15 S.Ct. 771, 771, 39 L.Ed. 913 (1895); Hayes, 821 F.2d at 287; Humble Oil & Refining Co. v. Copeland, 398 F.2d 364, 367 & n. 5 (4th Cir.1968); Miller v. Miller, 715 S.W.2d 786, 788 (Tex.App.—Austin 1986, writ ref’d n.r.e.); Laslie v. Gragg Lumber Co., 184 Ga. 794, 193 S.E. 763, 765 (1937). Only a handful of jurisdictions have rejected the local action doctrine. See, e.g., Reasor-Hill Corp. v. Harrison, 220 Ark. 521, 249 S.W.2d 994, 995-96 (1952); Holmes v. Barclay, 4 La.Ann. 63 (1849); St. Louis Smelting & Refining Co. v. Hoban, 357 Mo. 436, 209 S.W.2d 119, 123-24 (1948). Significantly, however, Mississippi is one of the jurisdictions which has rejected the common law local action doctrine. See Archibald v. Mississippi & T.R. Co., 66 Miss. 424, 6 So. 238, 238-39 (1889) (“The common law distinction between local and transitory actions does not exist here.”). Trust argues that Mississippi law should determine whether the local action doctrine applies in this case. If this Court treated the local action doctrine in the same manner it treats other matters of jurisdiction and venue, then this" }, { "docid": "12295198", "title": "", "text": "non-diverse party; and 2) a federal district court sitting in Texas had no subject matter jurisdiction over a dispute about title to a Colorado leasehold. Hayes voluntarily dismissed Shell and again amended his complaint. Gulf then renewed its motion to transfer this action due to a want of jurisdiction pursuant to 28 U.S.C. § 1631. The district court held that it had subject matter jurisdiction to adjudicate the question of leasehold title in lands located wholly in Colorado and denied Gulf’s motion. The district court certified this issue for interlocutory appeal, 28 U.S.C. § 1292(b), and this court granted Gulf permission to appeal. II. The Local Action Doctrine The questions presented are: whether Hayes’ action is indeed local, whether the local action doctrine remains good law, and whether the rule affects only the venue of the court and may be waived. A local action involving real property can only be brought within the territorial boundaries of the state where the land is located. See Ellenwood v. Marietta Chair Co., 158 U.S. 105, 107, 15 S.Ct. 771, 771, 39 L.Ed. 913 (1895); see also 15 Wright, Miller, & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d § 3822, at 202-04 (1980). Chief Justice Marshall recognized the common law concept of the local action doctrine while sitting as a Circuit Justice in Livingston v. Jefferson, 15 F.Cas. 660 (C.C.D.Va.1811) (No. 8411). In that case, Edward Livingston sued former president Thomas Jefferson in a federal court in Virginia for an alleged trespass to land in Louisiana. The court dismissed the action, since an action for trespass to land in Louisiana was local and could not be heard in a Virginia court. Following Livingston, the Supreme Court has consistently recognized that a local action must be brought within the state where the land is located. See, e.g., Louisville & N.R.R. v. Western Union Telegraph Co., 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356 (1914); Ellenwood, 155 U.S. at 107, 15 S.Ct. at 771; Casey v. Adams, 102 U.S. (12 Otto) 66, 67-68, 26 L.Ed. 52 (1880). This court has held that" }, { "docid": "15448218", "title": "", "text": "GAJARSA, Circuit Judge. Michael M. Johnson appeals the decision of the United States Court of Federal Claims granting the United States’s motion for summary judgment as to Johnson’s Fifth Amendment takings claim. Johnson v. United States, 49 Fed. Cl. 648 (2001). Because Johnson had no standing to bring the takings claim before the Court of Federal Claims, we affirm. BACKGROUND Johnson was the sole shareholder and vice-president of Johnson Properties, Inc. (“JPI”), which was incorporated in the state of Mississippi. JPI owned a number of sewage and water treatment plants in Louisiana and several other states. In 1998, the United States, acting through the Environmental Protection Agency (“EPA”), sued JPI and some of its Louisiana subsidiaries claiming violations of the Clean Water Act, 33 U.S.C. §§ 1311, et seq. (1994). The state of Louisiana intervened in this enforcement action and added state law violations to the claim. On July 31, 1998, the District Court for the Western District of Louisiana (‘Western District”) entered a consent decree negotiated and executed by JPI and the respective state and federal governments. The consent decree, which received final approval on November 16, 1998, required JPI to take immediate steps toward abating its federal and state environmental violations. Inspections by the EPA in December 1998, however, revealed a total of 661 violations of the consent decree. Thereafter, in February 1999, the EPA and the state of Louisiana petitioned the district court for appointment of a receiver to ensure JPI’s compliance with the consent decree. On March 12, 1999, while the governments’ petition for appointment of a receiver was pending in the Western District, JPI filed for bankruptcy under Chapter 11 of the bankruptcy statute, 11 U.S.C. §§ 1101, et seq. (2000), in the District Court for the Middle District of Louisiana. In re Johnson Props., Inc., No. 99-10437 (Bankr.M.D.La. Mar. 12, 1999). Subsequent to the bankruptcy filing, the automatic stay, normally available under the bankruptcy laws, of the environmental enforcement action pending in the Western District, was denied by the bankruptcy court. JPI also moved directly before the Western District for a stay of the" }, { "docid": "11643774", "title": "", "text": "on res judicata”). Indeed, “[i]f an affirmative defense ... is apparent on the face of the complaint ... that [defense] can provide the basis for dismissal under Rule 12(b)(6).” Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir.2008). Our interpretation of the phrase “face of the complaint ... includefs] public records and materials embraced by the complaint,” id., and “materials] attached to the complaint,” Quinn v. Ocwen Federal Bank FSB, 470 F.3d 1240, 1244 (8th Cir.2006) (per curiam) (quotation omitted). Here, the complaint, with its attachments, provided sufficient bases for a res judicata defense on a motion to dismiss. C.H. Robinson’s complaint contains several allegations concerning the order and judgment in the Louisiana action, the Employee Agreement, and the Restricted Stock Plans. Each one of these documents is also attached to the complaint. Given that these materials reveal the applicability of res judicata to this case, we conclude the district court properly decided the merits of Lobrano’s res judicata defense on a motion to dismiss. B. Res Judicata Merits “The law of the forum that rendered the first judgment controls the res judicata analysis.” Laase, 638 F.3d at 856 (quotation omitted). Here, the United States District Court for the Western District of Louisiana, exercising its diversity jurisdiction, rendered the first judgment. As a matter of federal common law, we must give that federal diversity judgment the same claim-preclusive effect that Louisiana state courts would give to a state court judgment. Semtek Int’l., Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). Thus, we apply Louisiana’s res judicata rules to this action. “Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase ‘res judicata’ to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel).” Certified Fin., Inc. v. Cunard, 838 So.2d 1, 4 (La.Ct.App.2002). “[U]nlike issue preclusion, claim preclusion is much broader, encompassing a prohibition against relitigation of those matters which, not only, were litigated but, also, of those which could have been litigated.” Williams v. City of Marksville, 839 So.2d 1129, 1131 (La.Ct.App.2003). In Louisiana, a" }, { "docid": "7710329", "title": "", "text": "brought and the citizen of another state, and provided that no such suit should he brought in any other district than that whereof the defendant was an inhabitant, or in which he should be found at the time of serving the writ. That case was a suit by a citizen of New York against Mr. Jefferson, a citizen of Virginia. It was brought in Virginia, of which district the defendant was an inhabitant, and where he was found. But it was a suit for a trespass on land committed in Louisiana whilst it was a territory, but which was then a state. It was held that the court had no jurisdiction, though it was recognized that there was no likelihood of Mr. Jefferson ever being in the state of 1 Louisiana so that he could be. sued there. In the case of Northern Indiana Ry. Co. v. Michigan Central Ry. Co., 15 How. 233, 14 L. Ed. 674, Mr. Justice McLean said: “Bin, wherever the subject-matter in controversy is local, and lies beyond the limit of the district, no jurisdiction attaches to the Circuit Court sitting in it. An action of ejectment cannot be maintained in the district of Michigan for land in any other district. Nor can an action of trespass quare clausum fregit be prosecuted where the act complained of was not done in the district. Both of these actions are local in their character, and must be prosecuted where the process of the court can reach the locus in quo.” The case of Ellenwood v. Marietta Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913, arose under the act of March 3, 1875. It was a suit in trespass exactly like the suit in trespass we have here. The trespass was committed in the state of West Virginia. The suit was brought, however, in the Circuit Court of the United States for. the Southern District of Ohio by a New Jersey citizen ag'ainst an Ohio corporation. The requisite diversity of citizenship existed, and the suit was brought in the district whereof the" }, { "docid": "14737944", "title": "", "text": "in part, and remanded. . South Carolina Nat’l Bank of Charleston v. Copeland, 248 S.C. 203, 149 S.E.2d 615 (1966). The court concluded Miss Welch’s attempt to incorporate the trust provisions of her brother’s will into her will as the terms of a trust established by her failed because the terms were not effectively declared. The court did not mention the Texas oil royalties or refer to Texas law. . This suit was filed against Humble in Harris County, Texas, situs of the royalty interest. The trustees later amended their petition to include as parties the heirs, the executor, and the attorney general of Texas, who under Texas statute is a necessary party in suits affecting charitable trusts. . Humble was unable to bring its inter-pleader in Texas because the heirs obtained an injunction against this from the South Carolina state court. Of course, it could not be enjoined from removing the state action and thereafter inter-pleading under 28 U.S.C. § 1335. . Jurisdiction to hear this appeal is based on 28 U.S.C. § 1292(a) (1). . With respect to invalidity of federal decrees in local actions involving land, see Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895) [trespass to West Virginia land could not be maintained in United States court sitting in Ohio]; Iselin v. Meng, 269 F.2d 345, 347 (5th Cir. 1959) (dictum), cert. denied, 361 U.S. 913, 80 S.Ct. 257, 4 L.Ed.2d 183 (1959). [denied res judicata to a decree of United States District Court sitting in Louisiana holding a tax deed to Mississippi land was invalid.] See also Barron and Holtzoff, Federal Practice and Procedure, § 72 (Wright ed. 1960). There is disagreement whether the defect is lack of jurisdiction or of venue. See Note, Local Actions in the Federal Courts, 70 Harv.L.Rev. 708 (1967). . Clarke v. Clarke, 178 U.S. 186, 190, 195, 20 S.Ct. 873, 876, 44 L.Ed. 1028 (1900). . Illustrative of these cases are Purcell v. Summers, 126 F.2d 390 (4th Cir.), cert. denied, 317 U.S. 640, 63 S.Ct. 32, 87 L.Ed. 516 (1942) [suit" }, { "docid": "8792841", "title": "", "text": "the Plaintiffs claimed that the accretions adhered were located in Louisiana, and (3) that the Plaintiffs by a deed to the Mengel Company had parted with whatever title they had, and that the reservation of accretions in the Mengel deed was not sufficient to entitle them to recover the accreted lands in Mississippi. The cumulative result of these conclusions was the dismissal of the case for failure to state a claim upon which relief could be granted. Plaintiffs appealed, and this Court affirmed. Iselin v. La Coste, 5 Cir., 139 F.2d 887; certiorari denied, 321 U.S. 790, 64 S.Ct. 791. Thereafter Plaintiffs, alleging the same diversity of citizenship, filed the present suit in the District Court of the United States for the Western District of Louisiant against the same Defendant, covering the same lands and seeking the same relief, but alleging that the lands are in Madison Parish, Louisiana, instead of Warren County, Mississippi, and that the changes in boundaries were brought about by avulsion rather than by accretion as asserted in the prior suit; and that the avulsive changes in the river do not contrive a change in title of the owner nor in the boundaries of states, and that even though the lands are attached to the Mississippi shore they are in law still a part of the State of Louisiana. We are, therefore, now confronted with the vagaries of the river as well as Lhe vagaries of counsel for Plaintiffs. Defendant, in this last case, moved for a summary judgment, asserting that the judgment of the District Court of the Southern District of Mississippi, affirmed by this Court, is res judicata of the case at bar. Seeking obviously to detour around so formidable a legal barricade, the Blaintiffs amended, alleging that it was through error and inadvertence of counsel that the first suit was filed in the Federal Court in Mississippi; that the opinion of the Circuit Court of Appeals affirming the District Court was obviously an erroneous, improper, unfounded, and unlawful conclusion disclosing a complete misunderstanding of the entire situation; that the finding that the Plaintiffs" }, { "docid": "3321219", "title": "", "text": "of Louisiana); Lewis, et al. v. Ford Motor Co., 94-0538 (filed in U.S. Dist. Court for the Southern District of Mississippi); Armistead, et al. v. Ford Motor Co., 94-0539 (filed in the U.S. Dist. Court for the Western District of North Carolina); Luis, et al. v. Ford Motor Co., 94-0540 (filed in the U.S. District Court for the Southern District of Florida); and Vitrano, et al. v. Ford Motor Co., 94-2537 (filed in the U.S. Dist. Court for the Eastern District of Louisiana). . These cases are Washington, et al. v. Ford Motor Co., 95-1676 (E.D.La.) and Kloster v. Ford Motor Co., 95-1966 (E.D.Mo.). Another tag-along, West v. Ford Motor Co., 95-2067 (S.D.Ind.), was dismissed on joint motion on 8/15/95 and another tag-along, Canzoneri v. Ford Motor Co., 96-1435 (E.D.La.), was severed as a personal injury, as opposed to a consumer action. . Record Doc. No. 241. . Id. . The Second Amended Complaint brought into play the laws of Indiana, Minnesota, New York, Texas and West Virginia, in addition to the laws of Louisiana, North Carolina, Mississippi, and Florida. . Record Doc. No. 241. . Id. . See Record Doc. Nos. 221, 239 and 361. . See Record Doc. No. 361 (Memorandum and Order dismissing all named plaintiffs’ claims for breach of contract, breach of express warranty, and fraud premised on affirmative misrepresentations and recognizing form of relief sought as cost to repair alleged defect). . Record Doc. No. 354. . According to defendant’s listing, which plaintiffs do not contest, sixty-nine (69) of the named plaintiffs purchased their Bronco II vehicles in Louisiana. See Defendant's Statement of Undisputed Material Facts; Exhibits A and B to Defen dant’s Summary Judgment Motion; Defendant’s Amendment to Summary Judgment Motion. . Plaintiffs' Memorandum in Opposition was filed on behalf of only forty-nine (49) Louisiana plaintiffs, as listed on the first page of that submission. . Plaintiffs state that their \"complaints, discovery responses, and affidavits which will be submitted at the hearing set forth genuine issues of material fact.” Opposing Memorandum at p. 2. However, the Local Rules of this district provide that, absent" }, { "docid": "17831644", "title": "", "text": "declaratory judgment that the '063 patent was invalid, unenforceable, and not infringed. Subsequently, PMR filed suit in the Southern District of Texas against Frank’s and others for infringement of the '063 patent. On June 15, 1998, that action was transferred to the Western District of Louisiana and consolidated with the declaratory judgment action. Additional declaratory judgment actions were filed in the Western District of Louisiana by Connection Technology, Ltd., Gulfstream Rental Tools, Inc., Offshore Energy Services, Inc. and Tong Rentals, Inc. against PMR asserting that the '063 patent was invalid, unenforceable, and not infringed. Those actions were also consolidated with the original action brought by Frank’s. On April 20, 1998, PMR moved under Rule 12(b)(2) of the Federal Rules of Civil Procedure to dismiss for lack of personal jurisdiction. On January 8, 1999, following discovery on the jurisdictional issue, the district court denied the motion. The district court found that PMR’s contacts with the Louisiana corporations it had licensed and the control PMR maintained through the terms of its license over the licensees’ use of the '063 patent rendered PMR subject to “specific jurisdiction” under Louisiana law. On January 25, 1999, after the district court’s ruling, PMR filed an amended Answer, Class-Action CounterClaim, and First Amended Complaint in the Western District of Louisiana asserting a new patent infringement class action claim, joining six additional defendants as named defendants and seeking to have them certified as representatives of a class of unnamed defendants. (No such certification occurred.) A bench trial was held on November 8-12 and 15-17, 1999. On January 24, 2000, the district court filed findings of fact and conclusions of law. It “[found] pursuant to 35 U.S.C. § 256, Dr. Weiner is an innocent co-inventor that should be added to the '0145 and '063 patents.” Frank’s Casing, No. 98-0254, slip op. at 49. The district court “[found] Dr. Weiner to have been an inventor or co-inventor of the TMS 1000,” id. at 44; that “the TMS 1000[was] the subject of the '0145 and the '063 patents,” id. at 43; and therefore concluded that ‘Weiner presented the ‘conception of the" }, { "docid": "23394080", "title": "", "text": "case: while its notice of appeal did not specifically state that the plaintiff appealed the entire case, the notice of appeal specifically challenged the dismissal of Trust’s action and the summary judgment in favor of the defendant. See Record at 264. We conclude that Trust's notice of appeal is effective and permits this Court to exercise its full appellate jurisdiction. B. Subject Matter Jurisdiction The district court dismissed this case because it concluded that the case was a “local action” which Trust should have brought in Georgia rather than Mississippi. Under the local action doctrine, a local action involving real property, as opposed to a transitory action, must be brought within the territorial boundaries of the state in which the land is located. Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987). The instant case, which Trust initiated in Mississippi state court, involves alleged property damages to a building in Georgia. If this case is indeed a local action, then the district court properly dismissed it. The common law distinction between local actions and transitory actions finds its American roots in Livingston v. Jefferson, 15 F.Cas. 660 (C.C.D.Va.1811) (No. 8411). In Livingston, a Louisiana landowner sued former president Thomas Jefferson in a federal court in Virginia for an alleged trespass to his land. The venerable Chief Justice John Marshall, sitting as a circuit judge, dismissed the action. Emphasizing that “actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere ... but are local where their cause is in its nature necessarily local,” Justice Marshall determined that an action for trespass to land in Louisiana was local and could not be heard in a Virginia court. Id. at 664. Since Livingston, the common law local action doctrine has become ingrained in American jurisprudence. State and federal courts alike have recognized and applied the rule. See, e.g., Louisville & N.R.R. v. Western Union Telegraph Co., 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356 (1914); Ellenwood v. Marietta Chair Co., 158 U.S. 105, 107, 15 S.Ct. 771, 771, 39 L.Ed. 913 (1895); Hayes, 821" }, { "docid": "18439118", "title": "", "text": "located in the State of Mississippi, and that the correct boundary between the States of Mississippi and Louisiana in the Diamond Point area is as described in the next part of this Report. “2. I find that under the doctrine of prescription the State of Mississippi has acquired title to the area known as Diamond Point and that its claim thereto has been acquiesced in by the State of Louisiana over a long period of time.” The Report of the Special Master was adopted. The Decree fixed the boundaries between the two States. Diamond Point, including the land claimed by the plaintiffs, is on the Mississippi side of the boundary. The defendants also annexed to their motion to dismiss a copy of a final decree entered by the United States District Court for the Western District of Louisiana in an action brought by John F. Ise-lin in which a title was asserted to the land here involved under the same Louisiana tax deed as is relied upon in the present suit. The Louisiana case had been held under advisement until Mississippi v. Louisiana was decided. After the decision of the Supreme Court the District Court for the Western District of Louisiana, on motion for summary judgment, held that under the Supreme Court decree the Louisiana tax deed was void and the grantees acquired nothing by it. The cause was dismissed with prejudice. The defendants here assert that the decree of the Court sitting in Louisiana is controlling on the question in this case. It would seem that the District Court for the Western District of Louisiana, after determining that the land involved was situate in another state and another judicial district, should have dismissed the suit for lack of jurisdiction over the subject matter. 1 Barron & Holtzoff, Federal Practice and Procedure, Rules Ed., 137 et seq. § 72; Smith v. Landis, 5 Cir., 1954, 211 F.2d 166; Woolgar v. La Coste, D.C.W.D.La.1947, 69 F. Supp. 571. We think the judgment of the Court sitting in Louisiana is without validity. Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct." }, { "docid": "14737945", "title": "", "text": "(1). . With respect to invalidity of federal decrees in local actions involving land, see Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895) [trespass to West Virginia land could not be maintained in United States court sitting in Ohio]; Iselin v. Meng, 269 F.2d 345, 347 (5th Cir. 1959) (dictum), cert. denied, 361 U.S. 913, 80 S.Ct. 257, 4 L.Ed.2d 183 (1959). [denied res judicata to a decree of United States District Court sitting in Louisiana holding a tax deed to Mississippi land was invalid.] See also Barron and Holtzoff, Federal Practice and Procedure, § 72 (Wright ed. 1960). There is disagreement whether the defect is lack of jurisdiction or of venue. See Note, Local Actions in the Federal Courts, 70 Harv.L.Rev. 708 (1967). . Clarke v. Clarke, 178 U.S. 186, 190, 195, 20 S.Ct. 873, 876, 44 L.Ed. 1028 (1900). . Illustrative of these cases are Purcell v. Summers, 126 F.2d 390 (4th Cir.), cert. denied, 317 U.S. 640, 63 S.Ct. 32, 87 L.Ed. 516 (1942) [suit challenging validity of church merger]; Title Guaranty & Surety Co. v. State of Missouri ex rel. and to Use of Stormfeltz, 105 F.2d 496 (8th Cir. 1939) [action against surety on guardianship bond] ; Stewart Oil Co. v. Sohio Petroleum Co., 185 F.Supp. 765 (E.D.Ill.1960), aff’d 315 F.2d 759 (7th Cir.), cert. denied, Kline v. Sohio Petroleum Co., 375 U.S. 828, 84 S.Ct. 71, 11 L.Ed.2d 60 (1963) [fraud or mistake in conveyance]; Marshall v. Greene, 27 F.Supp. 403 (D.Mass.1939), aff’d 108 F.2d 717 (1st Cir. 1940) [specific performance of contract for land]. . The trustees also assert that because their suit in Texas was filed before Humble’s counterclaim for interpleader, the state court had prior custody of the res. While priority lends support to the trustees’ position, cf. Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 90 L.Ed. 256 (1946); Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 83 L.Ed. 285 (1939), it is not indispensable to the conclusion we reach. . Besides the twenty-eight" }, { "docid": "18439120", "title": "", "text": "771, 39 L.Ed. 913; Equitable Trust Co. of New York v. Washington-Idaho Water, L. & P. Co., D.C.E.D.Wash.1924, 300 F. 601. If this be so then of course the judgment of the District Court of the Western District of Louisiana cannot be res judicata on the merits. Although of the opinion that the decree of the District Court for the Western District of Louisiana is not res judi-cata, we find ourselves in complete agreement with the conclusion which it reached as to the validity of the tax deed which is the primary muniment of the plaintiffs’ title. In the report of the Special Master in the case of Mississippi v. Louisiana, supra, it was stated: “The undisputed evidence showed that opposite the original mainland of Warren County, Mississippi, the land on the right or Louisiana bank of the Mississippi River at Diamond Point was eroded by action of the river over a long period of years and caved into the Mississippi River and disappeared. “Contemporaneously a point bar (Diamond Point Bar) was formed and built by accretions to the Mississippi shore in a northerly and westerly direction until it extended over the entire territory known as Diamond Island or Diamond Island Towhead. “As the Mississippi shore was thus extended by accretions, the thalweg or main navigable channel of the Mississippi River also moved in a northerly and westerly direction ; and as the thread of said channel thus moved, the boundary line between the States of Louisiana and Mississippi was also moved in a northerly and westerly direction, remaining at all times at the thread of said channel around Diamond Point Bar to the north, west and south.” The soundness of this conclusion is sustained by the principles announced by this Court which, in a case very similar to the case before us, said: “The center line of the main channel of the Mississippi River forms the boundary between Louisiana and Mississippi at the point where the land in controversy lies. Under the Mississippi law, a riparian proprietor on the Mississippi River owns to the thread of the stream. Changes" }, { "docid": "18439117", "title": "", "text": "Mississippi v. Louisiana case. This Report incorporates a stipulation entered in the record of the case by the State of Louisiana by which it was admitted that the area known as Diamond Point was not in Louisiana but was in Mississippi. The Master discussed the evidence taken before him relating to the boundary between the two States as it was and as it had been. Findings were made based upon this evidence. The portion of the findings relating to Diamond Point concluded with the following : “Suffice it to say that from the uneontradicted evidence I find that the State of Mississippi at all times for more than fifty years exercised jurisdiction and sovereignty over the body of land known as Diamond Point. This record discloses no assertion by the State of Louisiana prior to the institution of this suit, of any claim to such land. “Summary of Findings of Fact as to Diamond Point: “1. I find, based upon the admissions of the State of Louisiana and upon the evidence, that Diamond Point is located in the State of Mississippi, and that the correct boundary between the States of Mississippi and Louisiana in the Diamond Point area is as described in the next part of this Report. “2. I find that under the doctrine of prescription the State of Mississippi has acquired title to the area known as Diamond Point and that its claim thereto has been acquiesced in by the State of Louisiana over a long period of time.” The Report of the Special Master was adopted. The Decree fixed the boundaries between the two States. Diamond Point, including the land claimed by the plaintiffs, is on the Mississippi side of the boundary. The defendants also annexed to their motion to dismiss a copy of a final decree entered by the United States District Court for the Western District of Louisiana in an action brought by John F. Ise-lin in which a title was asserted to the land here involved under the same Louisiana tax deed as is relied upon in the present suit. The Louisiana case had" } ]

[ { "docid": "13111935", "title": "", "text": "852, 855 (Fed.Cir.1999); Fort James Corp. v. Solo Cup Corp., 412 F.3d 1340 (Fed.Cir. 2005), under our precedent the district court retained independent jurisdiction over Monsanto’s request for attorney fees under 35 U.S.C. § 285. As this court recently explained: While the covenant [not to sue for infringement] may have eliminated the case or controversy pled in the patent-related counterclaims and deprived the district court of Article III jurisdiction with respect to those counterclaims, the covenant does not deprive the district court of jurisdiction to determine the disposition of ... the request for attorney fees under 35 U.S.C. § 285. Highway Equip. Co. v. FECO, Ltd., 469 F.3d 1027, 1033 n. 1 (Fed.Cir.2006) (internal citation omitted); see also H.R. Techs., Inc. v. Astechnologies, Inc., 275 F.3d 1378, 1385 (Fed.Cir.2002). The parties do not dispute that the district court’s jurisdiction to rule on attorney fees encompassed the jurisdiction to make findings of inequitable conduct regarding all four patents. See Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 267 F.3d 1370, 1380 (Fed.Cir.2001) (“A district court may award reasonable attorney fees to the prevailing party in a patent infringement case where the conduct of a party is deemed to be ‘exceptional.’.... The prevailing party may prove the existence of an exceptional case by showing: inequitable conduct before the PTO .... ” (quoting 35 U.S.C. § 285)). The district court’s holding that the '799, '372, and '546 patents are unenforceable stemmed directly from its inequitable conduct findings. See Monsanto II, slip op. at 95 (“The Court ... finds by clear and convincing evidence that the equities warrant a conclusion that ... Bayer committed inequitable conduct.... The '799 patent, the '372 patent, and the '546 patent are accordingly unenforceable.”). The question facing this court is, thus, whether a district court’s jurisdiction under § 285 to determine whether there was inequitable conduct in the prosecution of patents that are otherwise no longer in suit confers on that court the jurisdiction to hold such patents unenforceable for inequitable conduct. We hold that it does. A district court has no discretion to decide whether a patent is" } ]

[ { "docid": "16837279", "title": "", "text": "the court granted Romag’s Rule 50(a) motion for JMOL because AMC failed to present any evidence on which a reasonable jury could conclude that Romag’s fastener’s had a rivet hole that increased magnetic attraction. Romag moved for attorney’s fees under 35 U.S.C. § 285 based on litigation misconduct and inequitable conduct for fraudulently listing Mr. Bauer as the '773 patent inventor. After briefing and a hearing, the district court granted Romag’s motion for attorney’s fees on both grounds. Id. at *2-19. Moreover, the district court held that the '773 patent was unenforceable for inequitable conduct and required AMC, Abelman, and Mr. Jaroslawicz to pay Romag’s attorney’s fees plus interest in the amounts of $1,509,976.16; $1,000,160.74; and $454,197.36, respectively. Both AMC and Mr. Jaroslawicz appealed. This court has jurisdiction over AMC’s and Mr. Jaroslawicz’s timely filed appeals under 28 U.S.C. § 1295(a)(1). Discussion On appeal, AMC argues that the district court erred in finding (1) that the '773 patent was unenforceable because Mr. Bauer committed inequitable conduct and (2) that this was an exceptional case under 35 U.S.C. § 285. AMC does not argue, however, that the award of attorney’s fees under 35 U.S.C. § 285 was improper because of litigation misconduct. Finally, AMC argues that the district court erred in granting Romag’s Rule 50(a) motion for JMOL. Mr. Jaroslawicz argues that the district court erroneously sanctioned him for attorney’s fees pursuant to 28 U.S.C. § 1927. We affirm the district court’s holding that the '773 patent is unenforceable based on inequitable conduct and the award of 35 U.S.C. § 285 attorney’s fees and costs against AMC. Because we hold that the '773 patent is unenforceable, we need not address the district court’s grant of JMOL. However, we reverse the district court’s 28 U.S.C. § 1927 sanction against Mr. Jaroslawicz. I. Inequitable Conduct AMC submits a broad and scattered challenge to the district court’s finding that the '773 patent is unenforceable based on inequitable conduct. We address each argument in turn and affirm the district court’s holding of unenforceability. A. Jurisdiction As a threshold matter, AMC argues that the district court" }, { "docid": "16837299", "title": "", "text": "we cannot reweigh witnesses’ credibility. See Liquid Dynamics Corp. v. Vaughan Co., Inc., 449 F.3d 1209, 1227 (Fed.Cir.2006) (refusing to reweigh a district court’s credibility findings in an inequitable conduct appeal); LNP Eng’g Plastics, Inc. v. Miller Waste Mills, Inc., 275 F.3d 1347, 1361 (Fed.Cir. 2001) (same). We review a district court’s materiality and intent findings for clear error, and we find no clear error here. Star Scientific, 537 F.3d at 1365. In addition to upholding the district court’s materiality and intent findings, we hold that the district court did not abuse its discretion in finding that Mr. Bauer’s deceit justified holding the '773 patent unenforceable. When an applicant falsely claims that he has invented a device, he can hardly claim the right to enforce a patent to which he was never entitled. We have upheld district court holdings of unenforceability when the named inventors acted with deceptive intent to exclude a true inventor. See Frank’s Casing, 292 F.3d at 1375-77 (holding a patent unenforceable when two named inventors deliberately excluded a true inventor from the patent application and concealed the true inventor’s participation from the prosecuting attorneys); PerSeptive, 225 F.3d at 1321-23 (holding patents unenforceable when a group of named inventors misrepresented their relationship with a laboratory to conceal that other people may have participated in inventing the technology). If district courts do not abuse their discretion in holding patents unenforceable when true inventors deliberately exclude co-inventors, a district court can, a fortiori, exercise its discretion to hold a patent unenforceable when a person falsely swears that he invented a device before the PTO. Because AMC and Mr. Bauer attempted to defraud the PTO, the district court was correct in holding the '773 patent unenforceable. II. Litigation Misconduct as an Independent Basis for Attorney’s Fees AMC further argues that the district court erred in finding that this was an exceptional case under 35 U.S.C. § 285 justifying an award of attorney’s fees. AMC does not argue, however, that the award of attorney’s fees under 35 U.S.C. § 285 was improper based on litigation misconduct. In response, Romag asserts that" }, { "docid": "16837286", "title": "", "text": "conduct by deliberately excluding an innocent co-inventor from their patent application. Id. at 1376. The court explained that “ ‘if unenforceable due to inequitable conduct, a patent may not be enforced even by “innocent” co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual.’ ” Id. at 1337 (quoting Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1556 (Fed.Cir.1997)). Accordingly, this court sustained the district court’s holding of unenforceability. Id. The court, however, remanded the case “for the limited purpose of determining the correct inventorship” because an action under 35 U.S.C. § 256 did not “prevent[ ] a court from correcting the inventorship of an unenforceable patent.” Id. at 1377 (alteration added). As in Frank’s Casing, the district court here had no obligation to resolve inventorship for the purposes of holding the patent unenforceable. If Mr. Bauer— as the sole named inventor — deliberately misrepresented that he invented the '773 patent’s fastener to the PTO, his deceit would “spoilt] the entire barrel,” leaving the '773 patent unenforceable. Stark, 119 F.3d at 1556 (alteration added). The only substantive difference between this case and Frank’s Casing is that we have no reason here to remand to the district to resolve inventorship as no party has sought to correct inventorship under 35 U.S.C. § 256. Accordingly, the district court did not err by addressing inequitable conduct and unenforceability without resolving inventorship. D. Inequitable Conduct on the Merits AMC also challenges the merits of the district court’s inequitable conduct finding. According to AMC, the district court erred by relying on Mr. Riceman’s “uncorroborated and hearsay testimony” to infer Mr. Bauer’s intent to deceive. Appellant AMC’s Br. 45. “We review the district court’s inequitable conduct determination under a two-tier standard; we review the underlying factual determination for clear error, but we review the ultimate decision as to inequitable conduct for an abuse of discretion.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1365 (Fed.Cir.2008). Because we find that the evidence AMC proffered independently supports the district" }, { "docid": "16837285", "title": "", "text": "notice and a full and fair hearing to address Romag’s motion for attorney’s fees based on Mr. Bauer’s inequitable conduct and AMC’s litigation misconduct. C. Inventorship AMC next argues that the district court erred by failing to determine inventorship under the standards of 35 U.S.C. § 102(f) when finding that AMC committed inequitable conduct. According to AMC, “an inequitable conduct finding based upon an alleged false oath of inventorship necessarily requires that the issue of inventorship first be determined.” Appellant AMC’s Br. 28. We review the meaning of a patent statute without deference as a question of law. See In re McGrew, 120 F.3d 1236, 1237-38 (Fed.Cir. 1997). AMC’s argument is not supported by this court’s decisions. We have held that when named inventors deliberately conceal a true inventor’s involvement, the applicants have committed inequitable conduct and the patent is unenforceable even as to an innocent co-inventor. Frank’s Casing Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 1376-77 (Fed.Cir.2002). In Frank’s Casing, this court held that the named inventors committed inequitable conduct by deliberately excluding an innocent co-inventor from their patent application. Id. at 1376. The court explained that “ ‘if unenforceable due to inequitable conduct, a patent may not be enforced even by “innocent” co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual.’ ” Id. at 1337 (quoting Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1556 (Fed.Cir.1997)). Accordingly, this court sustained the district court’s holding of unenforceability. Id. The court, however, remanded the case “for the limited purpose of determining the correct inventorship” because an action under 35 U.S.C. § 256 did not “prevent[ ] a court from correcting the inventorship of an unenforceable patent.” Id. at 1377 (alteration added). As in Frank’s Casing, the district court here had no obligation to resolve inventorship for the purposes of holding the patent unenforceable. If Mr. Bauer— as the sole named inventor — deliberately misrepresented that he invented the '773 patent’s fastener to the PTO, his deceit would “spoilt]" }, { "docid": "16837268", "title": "", "text": "Jaroslawicz all appealed the judgment to this court. But Abelman subsequently settled with Romag, and this court dismissed Abelman’s appeal. Advanced Magnetic Closures, Inc. v. Rome Fastener Corp., 331 Fed. Appx. 732, 733 (Fed.Cir.2009). We affirm the district court’s holding that the '773 patent is unenforceable based on inequitable conduct and its award of 35 U.S.C. § 285 attorney’s fees and costs against AMC, but we reverse its 28 U.S.C. § 1927 sanction against Mr. Jaroslawicz. Background AMC owns the '773 patent, which discloses a magnetic snap fastener commonly used in women’s handbags. Magnetic snap fasteners typically consist of two halves — a male and female half. Both halves contain a rivet in the center. In one of the '773 patent preferred embodiments, the female half contains a magnetic rivet positioned just below a plate, creating an opening into which the male rivet can insert or “snap” into place. '773 patent col.4 11.38-41. Once the male half has snapped inside the female half, claim 1 of the '773 patent states that the two create a magnetic circuit that “passes at least through a periphery of [the] first rivet of [the] female member.” Id. at col.8 11.17— 19. The last element of claim 1 requires a “small hole” in at least one of the “rivets increasing the magnetic attraction of [the] magnetic member [in the female half] by modifying a resistance to said magnetic circuit at said first and second rivets.” Id. at col.8 11.19-23. Figure 1 from the '773 patent below shows holes running through both the female and male halves, numbered as 32 and 35 respectively. On October 30, 1998, AMC filed suit against Romag, alleging, among other things, that Romag’s magnetic snap 'fasteners infringed claim 1 of the '773 patent. Romag holds U.S. Patent No. 5,722,126 (the “'126 patent”) for a magnetic snap fastener and marks all of its fasteners with the '126 patent number. To determine whether Romag’s fasteners infringed, the district court construed the last element of the '773 patent’s claim 1 to cover a magnetic snap fastener “in which the magnet causes lines of magnetic" }, { "docid": "16837280", "title": "", "text": "35 U.S.C. § 285. AMC does not argue, however, that the award of attorney’s fees under 35 U.S.C. § 285 was improper because of litigation misconduct. Finally, AMC argues that the district court erred in granting Romag’s Rule 50(a) motion for JMOL. Mr. Jaroslawicz argues that the district court erroneously sanctioned him for attorney’s fees pursuant to 28 U.S.C. § 1927. We affirm the district court’s holding that the '773 patent is unenforceable based on inequitable conduct and the award of 35 U.S.C. § 285 attorney’s fees and costs against AMC. Because we hold that the '773 patent is unenforceable, we need not address the district court’s grant of JMOL. However, we reverse the district court’s 28 U.S.C. § 1927 sanction against Mr. Jaroslawicz. I. Inequitable Conduct AMC submits a broad and scattered challenge to the district court’s finding that the '773 patent is unenforceable based on inequitable conduct. We address each argument in turn and affirm the district court’s holding of unenforceability. A. Jurisdiction As a threshold matter, AMC argues that the district court should not have addressed inequitable conduct because it lacked jurisdiction to determine inventorship after Romag withdrew its counterclaim that the '773 patent was invalid under 35 U.S.C. § 102(f). We review whether a district court properly asserted jurisdiction without deference. Monsanto Co. v. Bayer Bioscience N. V., 514 F.3d 1229, 1242 (Fed.Cir.2008). AMC misunderstands a district court’s authority to retain jurisdiction un der 35 U.S.C. § 285. • This court has held that a district court retains jurisdiction to consider a motion for attorney’s fees under 35 U.S.C. § 285 and to make findings of inequitable conduct — even after a party has dismissed its counterclaims as to that patent. See id. at 1242-43. The district court, therefore, properly retained jurisdiction to consider Romag’s motion for attorney’s fees based on inequitable conduct. B. Due Process AMC also asserts that the district court violated its due process rights because it did not give AMC a full and fair hearing on inequitable conduct or inventor-ship. Because this issue presents a procedural question not unique to patent law," }, { "docid": "16837300", "title": "", "text": "the patent application and concealed the true inventor’s participation from the prosecuting attorneys); PerSeptive, 225 F.3d at 1321-23 (holding patents unenforceable when a group of named inventors misrepresented their relationship with a laboratory to conceal that other people may have participated in inventing the technology). If district courts do not abuse their discretion in holding patents unenforceable when true inventors deliberately exclude co-inventors, a district court can, a fortiori, exercise its discretion to hold a patent unenforceable when a person falsely swears that he invented a device before the PTO. Because AMC and Mr. Bauer attempted to defraud the PTO, the district court was correct in holding the '773 patent unenforceable. II. Litigation Misconduct as an Independent Basis for Attorney’s Fees AMC further argues that the district court erred in finding that this was an exceptional case under 35 U.S.C. § 285 justifying an award of attorney’s fees. AMC does not argue, however, that the award of attorney’s fees under 35 U.S.C. § 285 was improper based on litigation misconduct. In response, Romag asserts that AMC has waived any argument that the district court improperly awarded attorney’s fees based on the independent ground of litigation misconduct and that this court must affirm the district court’s award of attorney’s fees. This court has consistently held that a party waives an argument not raised in its opening brief. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.Cir.2006); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990). However, the court maintains discretion to address an argument not properly raised in the opening brief if disregarding the argument would result in an unfair procedure. SmithKline Beecham, 439 F.3d at 1320 n. 9; Becton Dickinson, 922 F.2d at 800. AMC indeed did not argue in its opening brief or even in its reply brief that the district court erred in awarding attorney’s fees under 35 U.S.C. § 285 based on litigation misconduct. Moreover, AMC’s failure does not present a case in which this court should address the issue to remedy an unfair procedure. AMC clearly understood the issue, but" }, { "docid": "16837306", "title": "", "text": "sanctions. These statements cannot equate to finding that Mr. Jaroslawicz acted in bad faith. Rather, the statements suggest that a reasonable attorney would have known not to proceed with trial. But in the Second Circuit, “[28 U.S.C.] § 1927 requires subjective bad faith of counsel,” not objective unreasonableness. Mac-Draw, Inc. v. CIT Grp. Equip. Fin., Inc., 73 F.3d 1253, 1262 (2d Cir.1996). Because the district court failed to identify with specificity the bad-faith standard and used language suggesting an objective standard, we are not convinced that the district court found Mr. Jaroslawicz acted in bad faith. The district court thus did not satisfy the Second Circuit’s requirement for “a high degree of specificity in the factual findings.” Dow Chem., 782 F.2d at 344. Conclusion For the foregoing reasons, we affirm the district court’s holding that the '773 patent is unenforceable based on inequitable conduct and its award of attorney’s fees against AMC under 35 U.S.C. § 285. However, we reverse the district court’s sanction and award of attorney’s fees against Mr. Jaroslawicz under 28 U.S.C. § 1927. AFFIRMED IN PART and REVERSED IN PART Costs Each party shall bear its own costs. . Mr. Bauer described his nail strength experiment in the following exchange with the court: THE COURT: You put nails on the wall? THE WITNESS: I took a nail, the head of the nail, and I drilled a hole in the back of the nail and I put it on [a flat magnetic plate attached to the wall]. And I took a piece of copper tubing and I cut round rings, as a weight. I used three pieces of weight, and I put it through the end of the nail. The one with the whole was holding- THE COURT:-greater weight. THE WITNESS:-greater weight. The one without the hole tipped over. AMC IV, 2008 WL 2787981, at *8 (alterations in the original). RADER, Chief Judge, concurring. In this case, Mr. Bauer held himself out as the inventor of the patent in suit when the record makes clear that he knew he was not, especially in light of his attempts" }, { "docid": "19922987", "title": "", "text": "actually being an alternative ground for a holding of invalidity, not a proper basis for a cross-appeal. D. Inequitable Conduct Medrad finally argues that the district court should not have dismissed as moot its counterclaim asserting inequitable conduct. Medrad asserts that that counterclaim is independent and distinct from an invalidity claim, and it may be the basis for two additional remedies: a determination that the entire patent is unenforceable and an award of attorney fees under 35 U.S.C. § 285. We agree with the district court that the inequitable conduct counterclaim is moot. With regard to the argument that an inequitable conduct determination may render the entire patent unenforceable, Medrad admitted during oral arguments that such relief is not meaningful to Medrad at this time. The only other additional relief that may be available to Medrad by an inequitable conduct determination is attorney fees under 35 U.S.C. § 285. Medrad admitted during oral arguments that, although it plans to predicate an attorney fee .application on inequitable conduct, it has not filed that application yet. We therefore affirm the decision that the inequitable conduct counterclaim is presently moot. CONCLUSION Because the district court correctly granted summary judgment that Liebel’s patents are invalid, we affirm the conclusion that all the asserted claims are invalid, the front-loading patents on enablement and the syringe-sensing patents on anticipation grounds. Because we find no error in the district court’s holding that the inequitable conduct counterclaim is moot, we affirm that decision as well. AFFIRMED. . In 1991, Liebel filed Application Serial No. 07/712,110, which issued as U.S. Patent 5,300,031. The claims of the '031 patent include a pressure jacket limitation. The '669 and '261 patents, which do not recite a pressure jacket limitation, resulted from continuation applications, claiming priority from the '110 application. . Because we determine that the asserted claims of the syringe-sensing patents are invalid by reason of anticipation by the '858 patent, we need not address written description or enablement issues, which were the other grounds on which the district court found the syringe-sensing patents to be invalid. . We have stated that" }, { "docid": "16837305", "title": "", "text": "acted in bad faith. The Second Circuit’s precedents make clear that the court meant what it said: “[T]he court’s factual findings of bad faith must be characterized by a high degree of specificity.” Schlaifer Nance, 194 F.3d at 338 (internal quotation marks omitted) (emphasis added). Here, the district court is not specific, never using language tantamount to a finding of bad faith nor mentioning that bad faith is a requirement for 28 U.S.C. § 1927 sanctions. The district court wrote that “although he lacked any other evidence that the Romag snap infringed the claims of the '773 patent, [Mr.] Jaroslawicz continued to press AMC’s patent infringement claim at trial.” AMC IV, 2008 WL 2787981, at *17 (alteration added). The court further opined, “On th[e] date [that AMC decided to withdraw Dr. Ratnum as an expert witness], if not sooner, [Mr.] Jaroslawicz should have been aware of the deficiency of AMC’s patent infringement claim.” Id. (emphasis added). The court does not address Mr. Jaroslawicz’s intent anywhere else in its lone paragraph discussing 28 U.S.C. § 1927 sanctions. These statements cannot equate to finding that Mr. Jaroslawicz acted in bad faith. Rather, the statements suggest that a reasonable attorney would have known not to proceed with trial. But in the Second Circuit, “[28 U.S.C.] § 1927 requires subjective bad faith of counsel,” not objective unreasonableness. Mac-Draw, Inc. v. CIT Grp. Equip. Fin., Inc., 73 F.3d 1253, 1262 (2d Cir.1996). Because the district court failed to identify with specificity the bad-faith standard and used language suggesting an objective standard, we are not convinced that the district court found Mr. Jaroslawicz acted in bad faith. The district court thus did not satisfy the Second Circuit’s requirement for “a high degree of specificity in the factual findings.” Dow Chem., 782 F.2d at 344. Conclusion For the foregoing reasons, we affirm the district court’s holding that the '773 patent is unenforceable based on inequitable conduct and its award of attorney’s fees against AMC under 35 U.S.C. § 285. However, we reverse the district court’s sanction and award of attorney’s fees against Mr. Jaroslawicz under 28 U.S.C." }, { "docid": "16837301", "title": "", "text": "AMC has waived any argument that the district court improperly awarded attorney’s fees based on the independent ground of litigation misconduct and that this court must affirm the district court’s award of attorney’s fees. This court has consistently held that a party waives an argument not raised in its opening brief. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.Cir.2006); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990). However, the court maintains discretion to address an argument not properly raised in the opening brief if disregarding the argument would result in an unfair procedure. SmithKline Beecham, 439 F.3d at 1320 n. 9; Becton Dickinson, 922 F.2d at 800. AMC indeed did not argue in its opening brief or even in its reply brief that the district court erred in awarding attorney’s fees under 35 U.S.C. § 285 based on litigation misconduct. Moreover, AMC’s failure does not present a case in which this court should address the issue to remedy an unfair procedure. AMC clearly understood the issue, but simply never made the argument. In its reply brief, AMC admitted that “the district court did state that the finding of litigation misconduct constituted an independent basis for finding the case exceptional and awarding attorneys fees.” Appellant AMC’s Reply Br. 1 (emphasis added). Moreover, the district court made clear that AMC itself was responsible for some of the litigation misconduct. The court stated, “Even if the inequitable conduct ruling is set aside, however, several litigation decisions made by AMC and its counsel compel the determination that this case is extraordinary and attorney fees are merited.” AMC IV, 2008 WL 2787981, at *11 (emphasis added). Because AMC never argued that that the district court improperly awarded attorney’s fees based on litigation misconduct and the district coxirt relied on litigation misconduct as an independent ground, we affirm the district court’s award of attorney’s fees against AMC for $1,509,976.16 plus interest. III. Attorney Sanctions Under 28 U.S.C. § 1927 Mr. Jaroslawiez argues that the district court improperly sanctioned him for attorney’s fees under 28 U.S.C. § 1927. Under" }, { "docid": "16837278", "title": "", "text": "a flood.” Id. Mr. Bauer’s notation, however, conflicted with his testimony. On this “enhanced” copy, Mr. Bauer wrote, “HOLE IN MIDDLE RIVIT [SIC] DON’T PAY FOR 294 TO MITCH.” Id. at *9 (internal quotation marks omitted). “MITCH” refers to Mitchell Medina, whom Mr. Bauer apparently believed owned the '294 patent when he made the sketch. Id. Mr. Bauer, how ever, testified that he purchased the '294 patent from Tamoa Morita, not Mr. Medina, but failed to submit evidence documenting the purchase. Id. at *5, *9. Finally, Mr. Bauer’s notation suggested that purchasing the '294 patent was unnecessary, but Mssrs. Bauer and Fischer proceeded to acquire the '294 patent in spite of the notation. Id. at *6. At trial, AMC also sought to establish patent infringement without the testimony of its discredited expert witness. As part of its case in chief, AMC presented three pieces of circumstantial evidence: (1) the '126 patent summary of invention, (2) a Romag advertisement, and (3) some of the '126 patent prosecution history. At the completion of AMC’s case in chief, the court granted Romag’s Rule 50(a) motion for JMOL because AMC failed to present any evidence on which a reasonable jury could conclude that Romag’s fastener’s had a rivet hole that increased magnetic attraction. Romag moved for attorney’s fees under 35 U.S.C. § 285 based on litigation misconduct and inequitable conduct for fraudulently listing Mr. Bauer as the '773 patent inventor. After briefing and a hearing, the district court granted Romag’s motion for attorney’s fees on both grounds. Id. at *2-19. Moreover, the district court held that the '773 patent was unenforceable for inequitable conduct and required AMC, Abelman, and Mr. Jaroslawicz to pay Romag’s attorney’s fees plus interest in the amounts of $1,509,976.16; $1,000,160.74; and $454,197.36, respectively. Both AMC and Mr. Jaroslawicz appealed. This court has jurisdiction over AMC’s and Mr. Jaroslawicz’s timely filed appeals under 28 U.S.C. § 1295(a)(1). Discussion On appeal, AMC argues that the district court erred in finding (1) that the '773 patent was unenforceable because Mr. Bauer committed inequitable conduct and (2) that this was an exceptional case under" }, { "docid": "16837283", "title": "", "text": "before awarding attorney’s fees. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (“Like other sanctions, attorneys’ fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.”); Ametex Fabrics, Inc. v. Just In Materials, Inc., 140 F.3d 101, 109 (2d Cir.1998) (same). The district court provided AMC ample notice and opportunity to respond to Romag’s motion for attorney’s fees based on inequitable conduct. When Romag made its motion for fees in open court, the district court consulted with AMC and Romag in setting a briefing schedule. Pursuant to that schedule, AMC submitted its brief demonstrating it clearly understood Romag’s assertion that Mr. Bauer falsely claimed to have invented the '773 patent’s fastener. In its brief, AMC argued in part that Mr. Bauer was the true inventor of the fastener to rebut the claim of inequitable conduct. Several months after the parties submitted their briefs, the court held a hearing to address attorney’s fees. Moreover, Romag’s motion for attorney’s fees based on Mr. Bauer’s inequitable conduct represented the parties’ second time addressing Mr. Bauer’s claim to inventorship. AMC first had the opportunity to address inventorship when it moved for summary judgment against Romag’s “unclean hands” affirmative defense and 35 U.S.C. § 102(f) counterclaim. See AMC III, 2007 WL 1552395, at *2-5. AMC does not dispute that it submitted evidence of Mr. Bauer’s alleged inventor-ship at summary judgment and at trial. Rather, AMC complains that it never had an opportunity to rebut Mr. Riceman’s deposition testimony at summary judgment, at trial, or during the hearing on attorney’s fees and claims that the district court relied on Mr. Riceman’s testimony to resolve inventorship. Contrary to AMC’s argument, the district court did not resolve inventorship, making AMC’s due process arguments irrelevant. AMC’s arguments miss the mark because they fault the district court for failing to address an issue not before it — inventorship under 35 U.S.C. § 102(f). As explained below, the district court had no obligation to address inventorship. Accordingly, the district court provided AMC" }, { "docid": "16837284", "title": "", "text": "attorney’s fees based on Mr. Bauer’s inequitable conduct represented the parties’ second time addressing Mr. Bauer’s claim to inventorship. AMC first had the opportunity to address inventorship when it moved for summary judgment against Romag’s “unclean hands” affirmative defense and 35 U.S.C. § 102(f) counterclaim. See AMC III, 2007 WL 1552395, at *2-5. AMC does not dispute that it submitted evidence of Mr. Bauer’s alleged inventor-ship at summary judgment and at trial. Rather, AMC complains that it never had an opportunity to rebut Mr. Riceman’s deposition testimony at summary judgment, at trial, or during the hearing on attorney’s fees and claims that the district court relied on Mr. Riceman’s testimony to resolve inventorship. Contrary to AMC’s argument, the district court did not resolve inventorship, making AMC’s due process arguments irrelevant. AMC’s arguments miss the mark because they fault the district court for failing to address an issue not before it — inventorship under 35 U.S.C. § 102(f). As explained below, the district court had no obligation to address inventorship. Accordingly, the district court provided AMC notice and a full and fair hearing to address Romag’s motion for attorney’s fees based on Mr. Bauer’s inequitable conduct and AMC’s litigation misconduct. C. Inventorship AMC next argues that the district court erred by failing to determine inventorship under the standards of 35 U.S.C. § 102(f) when finding that AMC committed inequitable conduct. According to AMC, “an inequitable conduct finding based upon an alleged false oath of inventorship necessarily requires that the issue of inventorship first be determined.” Appellant AMC’s Br. 28. We review the meaning of a patent statute without deference as a question of law. See In re McGrew, 120 F.3d 1236, 1237-38 (Fed.Cir. 1997). AMC’s argument is not supported by this court’s decisions. We have held that when named inventors deliberately conceal a true inventor’s involvement, the applicants have committed inequitable conduct and the patent is unenforceable even as to an innocent co-inventor. Frank’s Casing Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 1376-77 (Fed.Cir.2002). In Frank’s Casing, this court held that the named inventors committed inequitable" }, { "docid": "16837287", "title": "", "text": "the entire barrel,” leaving the '773 patent unenforceable. Stark, 119 F.3d at 1556 (alteration added). The only substantive difference between this case and Frank’s Casing is that we have no reason here to remand to the district to resolve inventorship as no party has sought to correct inventorship under 35 U.S.C. § 256. Accordingly, the district court did not err by addressing inequitable conduct and unenforceability without resolving inventorship. D. Inequitable Conduct on the Merits AMC also challenges the merits of the district court’s inequitable conduct finding. According to AMC, the district court erred by relying on Mr. Riceman’s “uncorroborated and hearsay testimony” to infer Mr. Bauer’s intent to deceive. Appellant AMC’s Br. 45. “We review the district court’s inequitable conduct determination under a two-tier standard; we review the underlying factual determination for clear error, but we review the ultimate decision as to inequitable conduct for an abuse of discretion.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1365 (Fed.Cir.2008). Because we find that the evidence AMC proffered independently supports the district court’s findings on materiality and intent, we hold that the district court did not clearly err in its factual determinations. We further hold that the district court did not abuse its discretion in finding the '773 patent unenforceable based on Mr. Bauer’s inequitable conduct. Patent applicants “have a duty to prosecute patent applications in the [PTO] with candor, good faith, and honesty.” Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 488 F.3d 982, 999 (Fed.Cir.2007) (alteration added); see also 37 C.F.R. § 1.56(a) (2009). A party asserting inequitable conduct must prove by clear and convincing evidence that a patent applicant breached that duty by (1) “fail[ing] to disclose material information or submitting] materially false information to the PTO” with (2) “intent to mislead or deceive the examiner.” McKesson Info. Solutions, Inc. v. Bridge Med., Inc., 487 F.3d 897, 913 (Fed.Cir.2007) (internal quotation marks omitted) (alterations added). “The required showings of materiality and intent are separate, and a showing of materiality alone does not give rise to a presumption of intent to deceive.” Praxair, Inc. v." }, { "docid": "16837267", "title": "", "text": "Opinion for the court filed by Circuit Judge GAJARSA. Concurring opinion filed by Chief Judge RADER. GAJARSA, Circuit Judge. Advanced Magnetic Closures, Inc. (“AMC”) brought an action against Rome Fastener Corp., Rome Fastener Sales Corp., Romag Fasteners Inc., and Rings Wire, Inc. (collectively “Romag”) for allegedly infringing U.S. Patent No. 5,572,773 (the “'773 patent”). After AMC finished presenting its case in chief, the U.S. District for the Southern District of New York (the “district court”) granted Romag’s Rule 50(a) motion for judgment as a matter of law (“JMOL”). The district court subsequently assessed attorney’s fees and costs against AMC under 35 U.S.C. § 285 based on (1) the '773 patent applicants’ inequitable conduct before the U.S. Patent and Trademark Office (the “PTO”) and (2) AMC’s litigation misconduct. Pursuant to 28 U.S.C. § 1927, the court also held AMC’s attorneys jointly and severally liable for a portion of Romag’s attorney’s fees, including the law firm Abelman, Frayne & Schwab (“Abel-man”) and David Jaroslawicz — the sole member of Jaroslawicz & Jaros, LLC. AMG, Abelman, and Mr. Jaroslawicz all appealed the judgment to this court. But Abelman subsequently settled with Romag, and this court dismissed Abelman’s appeal. Advanced Magnetic Closures, Inc. v. Rome Fastener Corp., 331 Fed. Appx. 732, 733 (Fed.Cir.2009). We affirm the district court’s holding that the '773 patent is unenforceable based on inequitable conduct and its award of 35 U.S.C. § 285 attorney’s fees and costs against AMC, but we reverse its 28 U.S.C. § 1927 sanction against Mr. Jaroslawicz. Background AMC owns the '773 patent, which discloses a magnetic snap fastener commonly used in women’s handbags. Magnetic snap fasteners typically consist of two halves — a male and female half. Both halves contain a rivet in the center. In one of the '773 patent preferred embodiments, the female half contains a magnetic rivet positioned just below a plate, creating an opening into which the male rivet can insert or “snap” into place. '773 patent col.4 11.38-41. Once the male half has snapped inside the female half, claim 1 of the '773 patent states that the two create a" }, { "docid": "16837282", "title": "", "text": "we apply the law of the regional circuit from which the case is appealed. Massey v. Del Labs., Inc., 118 F.3d 1568, 1572 (Fed.Cir.1997). In general, the Second Circuit reviews a claim that the lower tribunal violated the petitioner’s due process rights without deference. See Motorola Credit Corp. v. Uzan, 509 F.3d 74, 80-81 (2d Cir.2007); United States v. Ramos, 401 F.3d 111, 115 (2d Cir.2005). AMC’s due process argument has no merit. AMC mischaracterizes the issue by claiming the district court failed to give it an opportunity to address inventorship under 35 U.S.C. § 102(f). But the district court was addressing Romag’s motion for attorney’s fees based on inequitable conduct, not Romag’s withdrawn counterclaim of invalidity under 35 U.S.C. § 102(f). Contrary to AMC’s claim, the district court provided AMC a full and fair hearing on the issue before it — a motion for attorney’s fees based on inequitable conduct and litigation misconduct. As in all federal courts of appeals, the Second Circuit requires district courts to give parties notice and a fair hearing before awarding attorney’s fees. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (“Like other sanctions, attorneys’ fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.”); Ametex Fabrics, Inc. v. Just In Materials, Inc., 140 F.3d 101, 109 (2d Cir.1998) (same). The district court provided AMC ample notice and opportunity to respond to Romag’s motion for attorney’s fees based on inequitable conduct. When Romag made its motion for fees in open court, the district court consulted with AMC and Romag in setting a briefing schedule. Pursuant to that schedule, AMC submitted its brief demonstrating it clearly understood Romag’s assertion that Mr. Bauer falsely claimed to have invented the '773 patent’s fastener. In its brief, AMC argued in part that Mr. Bauer was the true inventor of the fastener to rebut the claim of inequitable conduct. Several months after the parties submitted their briefs, the court held a hearing to address attorney’s fees. Moreover, Romag’s motion for" }, { "docid": "16837281", "title": "", "text": "should not have addressed inequitable conduct because it lacked jurisdiction to determine inventorship after Romag withdrew its counterclaim that the '773 patent was invalid under 35 U.S.C. § 102(f). We review whether a district court properly asserted jurisdiction without deference. Monsanto Co. v. Bayer Bioscience N. V., 514 F.3d 1229, 1242 (Fed.Cir.2008). AMC misunderstands a district court’s authority to retain jurisdiction un der 35 U.S.C. § 285. • This court has held that a district court retains jurisdiction to consider a motion for attorney’s fees under 35 U.S.C. § 285 and to make findings of inequitable conduct — even after a party has dismissed its counterclaims as to that patent. See id. at 1242-43. The district court, therefore, properly retained jurisdiction to consider Romag’s motion for attorney’s fees based on inequitable conduct. B. Due Process AMC also asserts that the district court violated its due process rights because it did not give AMC a full and fair hearing on inequitable conduct or inventor-ship. Because this issue presents a procedural question not unique to patent law, we apply the law of the regional circuit from which the case is appealed. Massey v. Del Labs., Inc., 118 F.3d 1568, 1572 (Fed.Cir.1997). In general, the Second Circuit reviews a claim that the lower tribunal violated the petitioner’s due process rights without deference. See Motorola Credit Corp. v. Uzan, 509 F.3d 74, 80-81 (2d Cir.2007); United States v. Ramos, 401 F.3d 111, 115 (2d Cir.2005). AMC’s due process argument has no merit. AMC mischaracterizes the issue by claiming the district court failed to give it an opportunity to address inventorship under 35 U.S.C. § 102(f). But the district court was addressing Romag’s motion for attorney’s fees based on inequitable conduct, not Romag’s withdrawn counterclaim of invalidity under 35 U.S.C. § 102(f). Contrary to AMC’s claim, the district court provided AMC a full and fair hearing on the issue before it — a motion for attorney’s fees based on inequitable conduct and litigation misconduct. As in all federal courts of appeals, the Second Circuit requires district courts to give parties notice and a fair hearing" }, { "docid": "16837292", "title": "", "text": "patent, id. at *7; (2) that Mr. Bauer offered difficult-to-follow explanations of the magnetic strength experiments he performed when he claimed to have conceived of the invention, id. at *7-8; (3) that Mr. Bauer submitted multiple sketches of his invention that he was forced to later admit were “reconstructed” after Romag challenged their authenticity, id. at *8; (4) that Mr. Bauer could not offer any “scientific or technical explanation” of his own patent, even though the “only allegedly patentable” claim is based on scientific principles of magnetism, id.; and (5) that Mr. Bauer offered an evasive, argumentative, and at times contradictory testimony on his status as inventor, id. at *8-9. Based on these facts, we cannot fault the court for finding that Mr. Bauer’s testimony “bore clear indicia of fabrication.” Id. at *8. Especially when Mr. Bauer fabricated evidence to support his claim of inventorship, we find it difficult to fault a district court in finding that “the single most reasonable inference able to be drawn from the evidence” is that Mr. Bauer intended to deceive the PTO. Star Scientific, 537 F.3d at 1366. We recognize that in analyzing intent to deceive, the district court did not explicitly weigh the letter Mssrs. Bauer and Rice-man sent to the prosecuting attorney claiming to have resolved the inventorship dispute. In evaluating intent, a district court must weigh all the evidence, including evidence of good faith. See Purdue Pharma, 438 F.3d at 1134. In this case, the district court was unquestionably aware of the letter as shown in its previous opinion. AMC III, 2007 WL 1552395, at *2. Moreover, the district court clearly understood the background of Mssrs. Bauer and Riceman’s inventorship dispute when it addressed inequitable conduct. In explaining Romag’s position on inequitable conduct, the district court implicitly referred to the letters Mr. Riceman sent to the prosecuting attorney. The court wrote, “Romag alleges that those charged under the patent laws with the duty of candor before the PTO in connection with the '773 application failed to disclose ... a dispute concerning the inventorship of the '773 snap....” AMC TV, 2008 WL" }, { "docid": "2531557", "title": "", "text": "and 103, that we must affirm the district court’s holding that Claims 2 and 3 are invalid under § 102(b). III. ATTORNEYS’ FEES AND FRAUD ON THE PATENT OFFICE In addition to ruling on the validity of Claims 1, 2 or 3, the district court also evaluated Paeco’s conduct in prosecuting its patent. While concluding that Paeco’s nondisclosure of certain prior art references did not constitute fraud on the patent office, the district court did find that Paeco’s conduct in the prosecution of its patent was “unfair” and “inequitable.” Based on this finding, the court determined that this case was “exceptional” within the meaning of 35 U.S.C. § 285 and that it would be “grossly unjust” to deny attorneys’ fees to AMI. The order entered by the district court states, in part: (4) This is an exceptional case under 35 U.S.C. § 285 and defendants are entitled to reasonable attorney fees, the amount thereof to be determined and established by agreement of counsel, affidavits submitted or further hearing. Paeco has appealed from the district court’s finding that it had engaged in inequitable and unfair conduct and from the above order awarding attorney fees. AMI has cross-appealed from the failure of the district court to grant AMI any relief other than attorneys’ fees based on Paeco’s alleged misconduct. Specifically, AMI contends that the district court also should have enjoined Paeco from asserting its patent defensively in the eventual trial of AMI’s antitrust counterclaims. Interesting as these issues may be we have no jurisdiction at present to consider any of them. The controlling rule as to our appellate jurisdiction was recently set forth by Judge Maris in W. L. Gore & Associates v. Carlisle Corp., 529 F.2d 614 (3d Cir. 1976). In Gore, the plaintiff’s complaint alleged infringement by the defendant of plaintiff’s patents. The defendant’s answer denied the validity of the patents, asserted that one of the plaintiff’s patents was unenforceable because of fraud in its procurement, and counterclaimed for damages based on the plaintiff’s alleged violation of the Sherman Act. After a trial, the district court entered a judgment holding" } ]

[ { "docid": "22752123", "title": "", "text": "all of the evidence and argument in respect to Néder’s defense against the tax charges. Of course, the court erroneously failed to charge the jury on the element of materiality, but that error did not render Neder’s trial “fundamentally unfair,” as that term is used in our cases. We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense. See, e. g., Yates v. Evatt, 500 U. S. 391 (1991) (mandatory rebuttable presumption); Carella v. California, 491 U. S. 263 (1989) (per curiam) (mandatory conclusive presumption); Pope v. Illinois, 481 U. S. 497 (1987) (misstatement of element); Rose, supra (mandatory rebuttable presumption). In other eases, we have recognized that improperly omitting an element from the jury can “easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis.” Johnson, supra, at 469 (citations omitted); see also California v. Roy, 519 U. S. 2, 5 (1996) (per curiam) (“The specific error at issue here — an error in the instruction that defined the crime — is ... as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission’ ”). In both cases — misdescrip-tions and omissions — the erroneous instruction precludes the jury from making a finding on the actual element of the offense. The same, we think, can be said of conclusive presumptions, which direct the jury to presume an ultimate element of the offense based on proof of certain predicate facts (e. g., “You must presume malice if you find an intentional killing”). Like an omission, a conclusive presumption deters the jury from considering any evidence other than that related to the predicate facts (e. g., an intentional killing) and “directly foreclose[s] independent jury consideration of whether the facts proved established certain elements of the offens[e]” (e. g., malice). Carella, 491 U. S., at 266; see id., at 270 (Scalia, J., concurring in judgment). The conclusion that the omission of an element is subject to harmless-error analysis is consistent with the" } ]

[ { "docid": "6522111", "title": "", "text": "interstate commerce element did occur. The trial judge ruled that these acts, as a matter of law, sufficed to show an effect on interstate commerce. The trial judge’s ruling was a correct statement of the law. The trial judge’s only error, under Gaudin, was in not allowing the jury to make that finding. However, because the trial judge’s ruling was a correct statement of the law and the jury found that the underlying predicate acts did occur, the error did nothing to change the outcome of the case because under a correct application of the law, the verdict would have been guilty regardless. In this respect, the present case is similar to Victor v. Nebraska, — U.S. -, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), where the Supreme Court held that the proper standard of reviewing allegedly erroneous jury instructions is whether there is a reasonable likelihood that the jury applied the instructions in a way that violates the Constitution. In the present case, because the jury found that the underlying predicate acts did occur, there is no reasonable likelihood that the jury would have applied a proper instruction erroneously. We therefore find the error to be harmless. See also, Yates v. Evatt, 500 U.S. 391, 402, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991) (taint of an unconstitutional burden-shifting jury instruction subject to harmless-error analysis); Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989) (jury instruction containing an erroneous mandatory presumption subject to harmless-error analysis) (per curiam); Pope v. Illinois, 481 U.S. 497, 502-04, 107 S.Ct. 1918, 1921-23, 95 L.Ed.2d 439 (1987) (jury instruction misstating an element of an offense subject to harmless-error analysis); Rose, 478 U.S. at 580, 106 S.Ct. at 3107 (1986) (jury instruction containing an erroneous rebuttable presumption subject to harmless-error analysis). But see, Sullivan, 508 U.S. at -, 113 S.Ct. at 2082 (erroneous burden of proof instruction not subject to harmless-error analysis). We do not address whether this same error might be considered harmful in future cases. DENIAL OF MOTION TO REOPEN During opening statements, Parker’s attorney told the" }, { "docid": "15173037", "title": "", "text": "whether harm to appellant must be measured, and, if so, how. I believe that under relevant Supreme Court decisions reversal is automatically required when the judge, as here, directs a verdict on an essential element of a crime, no matter how overwhelming — or even uncontested — the evidence is on that issue. Indeed, the IC neither argues that a harmless error test could be applied here, nor that this error was harmless in any event. Nevertheless, the Majority reaches both conclusions, in my view misreading the Supreme Court’s instructions on this issue and directly contradicting the holdings of three of our sister circuits that have faced this very same issue. The Court indicated its views on this question most directly in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). In Rose, the Court reviewed a conviction in which a district court instructed a jury in a murder trial, where malice was a necessary element of the murders charged, that “homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption.” Id. at 574, 106 S.Ct. at 3104. The instruction was undeniably erroneous since it placed the burden of disproving malicious intent on the defendant, see Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), but the Court held that harmless error analysis should have been applied. See Rose, 478 U.S. at 579-580, 106 S.Ct. at 3106-07. The Court, however, reiterated that “some constitutional errors require reversal without regard to the evidence in the particular case” because “some errors necessarily render a trial fundamentally unfair.” Id. at 577, 106 S.Ct. at 3106 (citing Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S.Ct. 824, 827 n. 8, 17 L.Ed.2d 705 (1967)). One of those instances the Court expressly identified in Rose was “directing] a verdict for the prosecution in a criminal trial by jury.” Id. 478 U.S. at 578, 106 S.Ct. at 3106. The Court explained that “ ‘a trial judge is prohibited from entering a judgment of conviction or directing the jury to" }, { "docid": "11010824", "title": "", "text": "111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (instruction containing an erroneous presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (same); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (same); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (instruction misstating an element of the offense). Even though such errors impermissibly deprive the jury of its fact-finding function, the resulting verdicts may be salvageable. Specifically, if other facts found by the jury are “so closely related” to the fact tainted by erroneous instructions “that no rational jury could find those facts without also finding [the former] fact, making those findings is functionally equivalent to finding” the lacking element. Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24 (Scalia, J., concurring in the judgment); see also Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986) (“When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury. In that event ... [,] the jury has found, in Winship’s words, ‘every fact necessary’ to establish every element of the offense be yond a reasonable doubt.”) (citations omitted); Carella, 491 U.S. at 266, 109 S.Ct. at 2421 (quoting this passage from Bose with approval); Pope, 481 U.S. at 503, 107 S.Ct. at 1922 (same). Sullivan itself distinguishes this line of cases from the fundamental flaw of misdes-cribing the burden of proof. In the latter case, the error “vitiates all the jury’s findings.” Sullivan, 508 U.S. at 281, 113 S.Ct. at 2082 (emphasis in original). Absent “the essential connection to a ‘beyond-a-reasonable-doubt’ factual finding ... a reviewing court can only engage in pure speculation.” Id. at 281, 113 S.Ct. at 2082 (citations omitted). In this case it is unnecessary to speculate on what the jury’s verdict would have been absent the" }, { "docid": "7010565", "title": "", "text": "error in the aiding and abetting instruction cannot be deemed harmless. C. The state argues relief is not warranted because Roy has not shown the error had a substantial or injurious effect on the jury’s verdict, as required when the error is raised in collateral proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). We disagree. On direct appeal, relief is granted for constitutional error unless the state demonstrates the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). As Justice Scalia said in Carella, the Chapman test can be met only if the reviewing court can tell what the jury actually found, since only then can the court conclude “ ‘beyond a reasonable doubt,’ Chapman v. California, 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705] (1967), that the jury found the facts necessary to support the conviction.” Carella, 491 U.S. at 271,109 S.Ct. at 2424. The Chapman standard is inapplicable on collateral review, however. In Brecht, the Court adopted a stricter standard for harmless error in habeas cases, holding relief is warranted on collateral attack only if the error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. at 1714 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); see Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir.1995). More recently, the Supreme Court has held relief is also appropriate if the record on collateral review leaves the judge in “grave doubt” as to the effect of the constitutional error. See O’Neal v. McAninch, — U.S. -,-, 115 S.Ct. 992, 994-95, 130 L.Ed.2d 947 (1995). Relief was granted in O’Neal because the record was “so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of the error.” O’Neal, — U.S. at-, 115 S.Ct. at 995. In such circumstances, “the uncertain judge should treat the error, not as if it were harmless," }, { "docid": "15068169", "title": "", "text": "process for a trial court to instruct the jury that a defendant is presumed to intend the ordinary consequences of his voluntary actions. This, the Court said, improperly puts the burden on the defendant to disprove intent, an element of the crime. Id. at 519, 99 S.Ct. at 2456-57. No one doubts that shifting the burden of proof significantly affects the trial and the jury’s deliberations. The Supreme Court has nevertheless repeatedly held that giving such a jury instruction is only trial error, subject to harmless-error analysis. See Yates v. Evatt, 500 U.S. 391, 402, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991) (presumption of malice); Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989) (conclusive presumption of intent); Rose, 478 U.S. at 579-82, 106 S.Ct. at 3106-08 (presumption of malice); see also McKenzie v. Risley, 842 F.2d 1525, 1530-31 (9th Cir.1988) (en banc) (harmless-error analysis applicable to Sand-strom violations). Based on the foregoing authorities, we conclude that Rice’s absence from the courtroom at the time the jury returned its verdict as to punishment, if it was constitutional error at all, see note 2 supra, was not structural error and is therefore subject to harmless-error analysis. Ill Having determined that the error here is not structural, we must next determine whether it was, in fact, harmless. Because this case comes to us on collateral review, the error is deemed harmless unless it has a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. at 1714 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). We commence our analysis by noting that, based on experience, it is unlikely that a juror will change his vote merely because defendant is present at return of the verdict and polling. See pp. 1143-44 and notes 5-7 supra. The prosecutor in this case made this even less likely by weeding out those jurors who would not or could not impose the death penalty. During voir dire, he repeatedly asked potential" }, { "docid": "23142700", "title": "", "text": "835 F.2d 517, 519 (3d Cir.1987). To overturn the convictions, however, it is not enough to conclude that the instructions were erroneous; we must also decide whether the error was harmless. Pope v. Illinois, 481 U.S. 497, 107 S.Ct.1918, 1922 & n. 7, 95 L.Ed.2d 439 (1987) (despite erroneous charge on crucial element of offense, convictions should stand if “no rational juror” could have failed to find that element, if properly instructed; disapproving prior cases suggesting that such error automatically requires reversal); Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986) (conviction may stand despite erroneous instruction shifting burden of proof on an element of the crime, if “a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt”). Because an erroneous instruction on an essential element of the crime is an error of constitutional dimension, we must ask not only whether the error was harmless under the ordinary Fed.R.Crim.P. 52(a) test, but whether it was harmless “beyond a reasonable doubt.” Pope, 107 S.Ct. at 1922; Rose, 478 U.S. at 576-79, 106 S.Ct. at 3105-07; see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). An erroneous instruction on an element of the offense can be harmless beyond a reasonable doubt, if, given the factual circumstances of the case, the jury could not have found the defendant guilty without making the proper factual finding as to that element. See Willard v. People of State of California, 812 F.2d 461, 464 (9th Cir.1987) (failure to give specific intent instruction in aiding and abetting prosecution, even if it “relieved the state of its constitutional burden to prove all elements of the offense beyond a reasonable doubt,” was harmless error in light of evidence and jury verdict); United States v. Bollinger, 796 F.2d 1394, 1403-04 (11th Cir.1986) (failure properly to define “acting in concert,” under a certain statute, as requiring conspiracy with five or more persons, was harmless in light of the evidence and jury verdict); United States v. Grayson, 795 F.2d 278, 290 (3d" }, { "docid": "3635289", "title": "", "text": "F.3d 863 (9th Cir.1996) (en banc), we stated that the proper harmless error test to be applied on direct review of cases involving jury instructions that misdescribe an element of the offense is that outlined in Justice Scalia’s concurring opinion in Carella v. California, 491 U.S. 263, 267-73, 109 S.Ct. 2419, 2421-24, 105 L.Ed.2d 218 (1989) (Sealia, J., concurring). See Roy, 81 F.3d at 866 & 867 n. 4; id. at 869 (Wallace, J., dissenting) (“the Carella concurrence explained how the Chapman v. State of Cal., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) harmless-error test is to be applied on direct appeal when the error involves a jury instruction”). Under that test, “the omission [or misdescription] is harmless only if review of the facts found by the jury establishes that the jury necessarily found the omitted [or misdescribed] element.” Roy, 81 F.3d at 867 (emphasis in original). Roy noted that the test is based ■ on the fundamental premise that appellate courts are not free to evaluate the evidence and postulate what the jury would have found if it had been properly instructed. “[T]he question is not whether guilt may be spelt out by a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.” Id. at 867 (quoting Carella, 491 U.S. at 269, 109 S.Ct. at 2422) (emphasis in Roy); see also Gaudin, 28 F.3d at 951 (“Harmless error analysis focuses on the basis which the jury actually rested its verdict.”) (citations omitted) (emphasis added). As explained by Justice Scalia, the test is also based on the premise that [w]hen the ... facts necessarily found by the jury[ ] are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, maMng those findings is functionally equivalent to finding the element required to be presumed. The error is harmless because it is “beyond a reasonable doubt” that the jury found the facts necessary to support the conviction. Carella, 491 U.S. at 271, 109" }, { "docid": "6427519", "title": "", "text": "United States v. Jenkins, 510 F.2d 495, 498 (2d Cir.1975) (failure to instruct is harmless where all evidence of commission of the crime is situated in the trial jurisdiction). This is so because in convicting of the offense charged, a jury of necessity finds an illegal act within the trial jurisdiction. However, in a multidistrict indictment, such as we have in this case, the jury could find the elements of the charged offense without finding the factual predicate for proper venue in the trial jurisdiction. See Green, 309 F.2d at 856-57. We therefore adopt the rule that failure to instruct on venue, when requested, is reversible error unless it is beyond a reasonable doubt that the jury’s guilty verdict on the charged offense necessarily incorporates a finding of proper venue. We note that the Supreme Court has engaged in a similar analysis in considering whether the use of an unconstitutional evi-dentiary presumption in jury instructions may be harmless. See Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989). The Court focused on whether, despite a flawed instruction, the jury had nonetheless been required to find the predicate facts to establish the element which was subject to the erroneous presumption: ‘When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.... In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury____ In that event the erroneous instruction is simply superfluous.” Id., (quoting Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986)) (citation omitted). As Justice Sealia observed in Carella, harmless-error analysis in this context is “unlike the typical form of such analysis” because we are not concerned with whether the verdict rendered on the element is supported by other properly admitted evidence, but rather with whether a verdict was in fact rendered on the element in spite of the erroneous instruction. Id. at 267, 109" }, { "docid": "15172794", "title": "", "text": "facts or circumstances of the particular case,” Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436 constitutional errors that occur at “a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury” are properly subjected to a harmless error analysis. Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). Provided that “beyond a reasonable doubt ... the error complained of did not contribute to the verdict obtained,” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the error is not grounds for reversal. The Supreme Court has never held that the trial judge’s determination of one of the elements of a crime is per se reversible error. Cf. Silberman Dissent at 456-457. Indeed, in Carella v. California, — U.S. -, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), the Court remanded for a harmless error inquiry even though the jury instructions at issue “relieved the State of its burden of ... proving by evidence every essential element of Carella’s crime beyond a reasonable doubt.” Id. 109 S.Ct. at 2420. Four Justices concurring in the judgment placed the harmless error remand in context, explaining, inter alia, that “an instruction establishing a- conclusive presumption with regard to an element of the crime that the defendant in any case admitted” was properly subject to harmless error analysis. Id. at 2423 (Scalia, J., concurring in the judgment). The mere fact that an error “deprives the jury of its factfinding role” is not per se grounds for reversal, id., and is subject to harmless error analysis when no rational jury could find the other elements of the offense without finding the fact presumed, see id. at 2421 (per curiam); id. at 2423 (Scalia, J., concurring in the judgment). We have no doubt that a harmless error analysis is appropriate here. Although the District Judge’s instruction took one narrow determination away from the jury, the error neither “aborted the basic trial process” nor “denied it altogether.” Rose, 478 U.S. at 578 n. 6, 106 S.Ct." }, { "docid": "16440892", "title": "", "text": "that the defendant had the “intent or purpose” of aiding the confederate’s crime was subject to harmless-error analysis); Carella v. California, 491 U.S. 263, 264, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per cu-riam) (holding that an instruction containing an unconstitutional conclusive presumption was subject to harmless-error analysis)). See also Rose v. Clark, 478 U.S. 570, 576-77, 579-80, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (holding that an unconstitutional instruction regarding malice in a murder case was subject to harmless-error analysis). . Cf. Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (explaining that when a \"trial court has instructed a jury to apply an unconstitutional presumption, a reviewing court can hardly infer that the jurors failed to consider it”), disapproved of on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). . Before Neder, we also had conflicting decisions regarding whether failure to instruct on an element of the crime was subject to harmless-error analysis. See United States v. Oreira, 29 F.3d 185, 189 n. 6 (5th Cir.1994) (collecting cases). Yet, foreshadowing Neder, in Oreira we employed a harmless-error analysis. Id. . Nevertheless, the Court was careful to avoid saying that the jury actually made a finding on materiality, merely stating, instead, that no jury could have reached the opposite conclusion. Justice Stevens contended that the verdict “necessarily included” a determination on materiality. Neder, 527 U.S. at 27, 119 S.Ct. 1827 (Stevens, J. concurring). In response, the majority explained that that was \"incorrect” because \"the [district] court explicitly directed the jury not to consider the materiality of any false statements.” Id. at 16 n. 1, 119 S.Ct. 1827. Nonetheless, even if the jury made no actual finding, the best reading of the opinion is that the verdict was \"the functional equivalent” of a materiality finding, given that there was no reason for the defendant to exclude the missing income from his tax returns if it was not material. Id. at 26, 119 S.Ct. 1827 (Stevens, J. concurring). . Indeed, one could aver (as" }, { "docid": "8022185", "title": "", "text": "reasonable juror easily could have understood this as an instruction that she or he was required to find the specific intent element satisfied. Moreover, the court’s later instructions were inadequate to undo the damage caused by the court’s earlier definitive statement. The court’s qualification that “I have not intended by anything I have said or done ... to intimate or suggest what you should find to be the facts” was too general and too late to ensure that the jurors would entirely disregard the court’s instruction that the only contested issue in the case should be decided against Powell. Therefore, the mid-trial instruction clearly violated the principles enunciated in Carella and Sandstrom. We further hold that harmless error review is inapplicable. The Supreme Court has recognized that “some constitutional errors require reversal without regard to the evidence in the particular case [because] some errors necessarily render a trial fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (stating that “harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury”), overruled in part by Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1997) (rejecting harmless error formulation of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). This applies on habeas review as well as on direct review. See Conde v. Henry, 198 F.3d 734, 741 (9th Cir.2000) (refusing to apply harmless error review in consideration of petition for writ of habeas corpus where structural errors rendered trial fundamentally unfair). The Court in Carella explained that a mandatory presumption instruction can be reviewed for harmless error because it is not equivalent to a directed verdict for the state — ’the jury is still required to find the predicate facts underlying each element beyond a reasonable doubt. Carella, 491 U.S. at 266, 109 S.Ct. 2419; see also Rose, 478 U.S. at 579-80, 106 S.Ct. 3101 (holding that instruction that impermissibly shifts burden of proof on malice element is subject to harmless error review). The" }, { "docid": "7010569", "title": "", "text": "omitted and the jury did not actually find the facts supporting the missing element, a judge can never know whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict” as required by Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (Brecht) (internal quotation omitted). See maj. op. at 867. By equating error under Carella v. California, 491 U.S. 263, 271, 109 S.Ct. 2419, 2423, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring) (Carella concurrence), with error under Brecht, the majority pays lip-service to the exclusive, less onerous, standard that the Court in Brecht said we should apply to trial errors when our review is collateral. I believe the majority erroneously looks to the Carella concurrence for the standard of review in habeas corpus cases, and that its error is compounded by its misapplication of Brecht and O’Neal v. McAninch, — U.S. -,-, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995) (O’Neal). I agree with the majority that Brecht’s less onerous standard completely supplants Chapman’s harmless-error test when we review collaterally. Maj. op. at 868; Brecht, 507 U.S. at 635-39, 113 S.Ct, at 1721-22. I also agree that the Carella concurrence explained how the Chapman harmless-error test is to be applied on direct appeal when the error involves a jury instruction. Maj. op. at 867-868. But from these two premises I conclude that because Carella was derived from Chapman, Brecht must supplant Carel-la when we review a jury instruction error collaterally. Brecht explicitly requires us to apply its standard of review to determine “whether habeas relief must be granted because of constitutional error of the trial type.” Brecht, 507 U.S. at 638, 113 S.Ct. at 1722; see also id. at 651, 113 S.Ct. at 1729 (O’Con-nor, J., dissenting) (Court’s holding applies “to any trial error asserted on habeas”); O’Neal, — U.S. at-, 115 S.Ct. at 994 (Brecht “sets forth the standard normally applied by a federal habeas court in deciding whether or not ... constitutional ‘trial’ error is harmless”). Misdescription of an element of an offense is trial error." }, { "docid": "11010851", "title": "", "text": "L.Ed.2d 460 (1986) and Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), the Court indicated that harmless error analysis is permissible in some cases where the jury has been instructed to apply mandatory presumptions that unconstitutionally relieved the state of its burden of proving all elements of the offense beyond a reasonable doubt. As the Court explained in Sullivan, the Sixth Amendment right to a jury trial is not violated by a harmless error analysis in a mandatory presumption ease if the predicate facts that the jury had to find before the presumption was triggered were “so closely related to the ultimate fact to be presumed that no rational jury could find those [predicate] facts without also finding that ultimate fact, making those findings [the] functional equivalent, [of] the element required to be presumed.” Sullivan at 281, 113 S.Ct. at 2083 (quoting from Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24). This case is not like Rose and Carella, however, and is indistinguishable from Sullivan. In Rose and Carella, the court could point to an actual finding made by the jury that was the functional equivalent of the element that the jury was required to find in order to support a guilty verdict. In this case, the court has not, and cannot, point to such a jury finding. In Rose, for example, the jury was instructed in such a manner that the court knew the jury had found either the malice required for a murder conviction or predicate acts on the part of the defendant from which malice was necessarily inferred. As the Court in Rose noted, “[w]hen a jury is instructed to presume malice from predicate facts, it must still find the existence of those facts beyond a reasonable doubt,” 478 U.S. at 580, 106 S.Ct. at 3107, and when that finding is the functional equivalent of the element required, there is an “object, so to speak, upon which harmless error scrutiny can operate.” Sullivan at 280, 113 S.Ct. at 2082. In none of the mandatory presumption cases where the Supreme Court has" }, { "docid": "8966735", "title": "", "text": "Carella “directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses,” Instruction 11 and the district court’s responses to the jury’s notes “directly foreclosed independent jury consideration” of whether Williams acted with intent to defraud. Id. at 266, 109 S.Ct. at 2420. Thus, under Carella, the district court’s instruction in this case indisputably violated Williams’ constitutional right to have the jury determine whether he acted with intent to defraud. The critical issue in this case is whether the erroneous verdict director requires reversal. As the majority notes, Williams did not object to the giving of Instruction 11. An error “not brought to the attention of the [district] court” is reversible only if it constitutes plain error. See Fed.R.Crim.P. 52(b). However, once the appellant shows that the district court committed constitutional error, the government bears the burden of proving the error harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1969). Under Carella, an erroneous instruction which erects a mandatory conclusive pre sumption of an element of a crime is harmless-error if, and only if, “no rational jury could find the predicate acts but fail to find the fact presumed.” Carella, 491 U.S. at 267, 109 S.Ct. at 2421. Four members of the Court stated that the harmless-error analysis authorized by Carella is “wholly unlike the typical form of [harmless-error] analysis.” Id. (Scalia, J., concurring in the judgment). Typical harmless-error analysis involves assessing the prejudicial impact of a particular error in light of the whole record. United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Justice Scalia explained that Carella does not authorize such review of a mandatory presumption concerning an element of the charged crime. 491 U.S. at 267, 109 S.Ct. at 2421. To consider the trial record as a whole “would be error.” Id. (emphasis added). In the present case, proof that Williams concealed, removed, disposed of or converted to his own use or the use of another, property that was pledged as collateral to the FmHA and" }, { "docid": "8022186", "title": "", "text": "directed a verdict for the prosecution in a criminal trial by jury”), overruled in part by Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1997) (rejecting harmless error formulation of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). This applies on habeas review as well as on direct review. See Conde v. Henry, 198 F.3d 734, 741 (9th Cir.2000) (refusing to apply harmless error review in consideration of petition for writ of habeas corpus where structural errors rendered trial fundamentally unfair). The Court in Carella explained that a mandatory presumption instruction can be reviewed for harmless error because it is not equivalent to a directed verdict for the state — ’the jury is still required to find the predicate facts underlying each element beyond a reasonable doubt. Carella, 491 U.S. at 266, 109 S.Ct. 2419; see also Rose, 478 U.S. at 579-80, 106 S.Ct. 3101 (holding that instruction that impermissibly shifts burden of proof on malice element is subject to harmless error review). The instruction here, however, is effectively the same as a directed verdict for the state, closely resembling the instructions criticized in United States v. Johnson, 71 F.3d 139 (4th Cir.1995), and United States v. Goetz, 746 F.2d 705 (11th Cir.1984), where the trial courts instructed the juries that a required element had been satisfied. See Johnson, 71 F.3d at 141 (trial court conclusively instructed the jury that the robbed credit union was a federally insured credit union within the meaning of the relevant statute); Goetz, 746 F.2d at 707-08 (trial court instructed the jury that the documents submitted by the defendants were not tax returns); see also United Bhd. of Carpenters & Joiners of America v. United States, 330 U.S. 395, 408-09, 67 S.Ct. 775, 91 L.Ed. 973 (1947) (reversing conspiracy convictions because trial court did not include instruction reflecting § 6 of the Norris LaGuardia Act, which limited imputed liability of officer, member or organization “participating or interested in a labor dispute,” and stating that “a judge may not direct a verdict of guilty no" }, { "docid": "11010823", "title": "", "text": "may operate. Edmonds and the panel are correct in a sense. Just as the Sixth Amendment precludes the court from affirming on the ground that the jury would have found the defendant guilty beyond a reasonable doubt had it been properly instructed, we cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the jury surely would have been unanimous had it been properly instructed on unanimity. Affirmance here, however, does not require making this speculative leap. Unlike the complete undermining of the verdict that occurred in Sullivan, this ease involves error affecting only one of many findings made by the jury. The Supreme Court has held that similar errors — jury instructions that erroneously contain a mandatory presumption or misdescribe an element of the offense — may be harmless if the remaining unaffected jury findings are “functionally equivalent to finding” the lacking element. Carella v. California, 491 U.S. 263, 271, 109 S.Ct. 2419, 2423-24, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring in judgment); see also Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (instruction containing an erroneous presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (same); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (same); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (instruction misstating an element of the offense). Even though such errors impermissibly deprive the jury of its fact-finding function, the resulting verdicts may be salvageable. Specifically, if other facts found by the jury are “so closely related” to the fact tainted by erroneous instructions “that no rational jury could find those facts without also finding [the former] fact, making those findings is functionally equivalent to finding” the lacking element. Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24 (Scalia, J., concurring in the judgment); see also Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986) (“When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond" }, { "docid": "2283494", "title": "", "text": "cases. A conclusive presumption exists where a trial court delivers a jury instruction that a reasonable jury could interpret as an irrebuttable directive to find a given element of a charged offense once convinced of a predicate fact or facts triggering the presumption. Sandstrom, 442 U.S. at 517, 99 S.Ct. 2450. Such a directive forecloses independent jury consideration of whether the facts proved are sufficient to establish the relevant element of the charged offense. Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam). Where “the jury might have understood the presumption to be conclusive, ... the instruction was constitutional error.” Id. We need not resolve the question of whether ¶ 3 contains a conclusive presumption, because, even if this instruction were deemed unconstitutional, the use of this potentially erroneous instruction would constitute harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In assessing a claim of constitutional error, we are mindful that “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Constitutionally erroneous jury instructions are harmless where “the predicate facts are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact.” United States v. Parmelee, 42 F.3d 387, 393 (7th Cir.1994) (quoting Carella, 491 U.S. at 271, 109 S.Ct. 2419 (per curiam) (Scalia, J., concurring)). “In many cases, the predicate facts conclusively establish [the element of the charge], so that no rational jury could find that the defendant committed [the former] ... but did not [commit the latter].” Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). In these cases, “the erroneous instruction is simply superfluous.” Id. at 581, 106 S.Ct. 3101. Dickerson’s case fits this mold precisely. We held in Doody that a guns-for-drugs exchange constitutes possession in furtherance" }, { "docid": "12675940", "title": "", "text": "1827, 144 L.Ed.2d 35 (1999), in which the Court ruled that the trial court's omission during its jury instructions of an essential element of the offense charged (namely, the materiality element of a tax offense) is subject to harmless error review. See id. 119 S.Ct. at 1833-36. In Neder, the Court observed that an error is \"structural,\" and therefore not subject to harmless error review, only in a \"`very limited class of cases,'\" id. 119 S.Ct. at 1833 (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)), and that it had on many occasions applied harmless error analysis to cases involving improper instructions on a single element of the offense, see id. 119 S.Ct. at 1834 (citing Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (mandatory rebuttable presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam) (mandatory conclusive presumption); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (misstatement of element); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (mandatory presumption)). Such omissions, the Court stated, \"differ[] markedly from the constitutional violations we have found to defy harmless-error review,\" such as the complete denial of counsel or trial before a biased judge. Id. 119 S.Ct. at 1833. Accordingly, where a court omits or misdes-cribes an essential element of the offense, as happened here by the court's failure to instruct the jury that the “violations” were themselves elements of the CCE crime and that they therefore must agree unanimously which violations make up the “continuing series,” the conviction must nonetheless be affirmed if the reviewing court can conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. See id. at 1838. In this case, the jury’s decision to convict Escobar on Counts 10, 19, 20, 23, 24, and 33 — which were alleged to be predicate violations supporting the CCE count — necessarily establishes that the jurors agreed unanimously that he was guilty of those" }, { "docid": "16440891", "title": "", "text": "proof — this was contained only in the jury instructions. . The government claims that Stanford never objected to the language of the special interrogatory but only to its placement. Yet, by objecting to the exclusion of the scienter requirement from Count One, Stanford preserved the beyond-a-reasonable-doubt issue; there was no need for the interrogatory to state the burden of proof if it was one of the elements in Count One. Additionally, Stanford requested that the interrogatory be placed immediately below Count One, and he specifically proposed that the instruction include the “beyond a reasonable doubt” language. .Neder, 527 U.S. at 11-12, 15, 119 S.Ct. 1827 (citing Pope v. Illinois, 481 U.S. 497, 499-503, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (holding that error in instructing on the wrong First Amendment standard for obscenity was subject to harmless-error analysis); California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (holding that an instruction for conviction of first degree murder that failed to inform the jury that it must find that the defendant had the “intent or purpose” of aiding the confederate’s crime was subject to harmless-error analysis); Carella v. California, 491 U.S. 263, 264, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per cu-riam) (holding that an instruction containing an unconstitutional conclusive presumption was subject to harmless-error analysis)). See also Rose v. Clark, 478 U.S. 570, 576-77, 579-80, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (holding that an unconstitutional instruction regarding malice in a murder case was subject to harmless-error analysis). . Cf. Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (explaining that when a \"trial court has instructed a jury to apply an unconstitutional presumption, a reviewing court can hardly infer that the jurors failed to consider it”), disapproved of on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). . Before Neder, we also had conflicting decisions regarding whether failure to instruct on an element of the crime was subject to harmless-error analysis. See United States" }, { "docid": "23630910", "title": "", "text": "“whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal citation omitted). Since Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court “has applied harmless-error analysis to a wide range of errors,” recognizing that “most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Automatic reversal is necessary only where structural error deprives the defendant of “basic protections” without which the “criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (citation omitted). Examples of structural error include the complete denial of counsel or the right of self-representation, trial judge bias, racial discrimination in the selection of a grand jury, denial of a public trial, and use of a defective reasonable-doubt instruction. Neder, 527 U.S. at 8, 119 S.Ct. 1827 (citing cases). By contrast, “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9, 119 S.Ct. 1827. A district court’s error in instructing a jury on the elements of a crime is subject to harmless-error review because it is not “so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to” the effect of the error on the outcome of the case. Id. at 7, 119 S.Ct. 1827. The “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error” and is subject to harmless-error review. Washington v. Recuenco, 548 U.S. 212, 222, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). The defendant relies on a case decided after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)," } ]

[ { "docid": "17466846", "title": "", "text": "were, when the work which he actually performed for the corporation is considered, we are unable to say that they were not in some measure performed in the exercise of his official duties. The officer referred to in section 17 (4) of the act includes an officer of a private corporation. In section 1 (1) of the act of 1841 (5 Stat. 440), Congress provided that: “All persons whatsoever * * * owing debts which shall not have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity * * * shall be deemed bankrupts.” Section 33 of the act of 1867 (14 Stat. 533) provides that: “No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act.” The act of 1898 omitted the word “public,” used in the Acts of 1841 and 1867. This must have been done for the purpose of enlarging the number of persons who could create a debt by fraud, embezzlement, misappropriation, or defalcation without being able thereafter to secure a discharge in bankruptcy. Any “officer,” private or public, is included in that term in the act of 1898. In re Harper (D. C.) 133 Fed. 970; In re Gulick (D. C.) 190 Fed. 52; Haggerty v. Badkin, 72 N. J. Eq. 473, 66 Atl. 420. Under the provisions of the acts of 1841 and 1867, the position of Bloemecke might have been tenable, but not under the act of 1898. We are of the opinion that Bloemecke created the debt by fraud while acting, as an officer of the Realty Corporation of North America, and is, not released from it by a discharge in bankruptcy. The question of whether or not Bloemecke was acting in a fiduciary capacity has been settled, so far as the Court of Chancery of New Jersey is concerned, by its decree, which has become final. That court held that Bloemecke was trustee" } ]

[ { "docid": "12698105", "title": "", "text": "or technical trusts. Chapman v. Forsyth, 43 U.S. (2 How.) at 207, 11 L.Ed. at 238; Davis v. Aetna, 293 U.S. at 333, 55 S.Ct. at 153-54. Moreover, the trustee’s duties must be independent of any contractual obligation between the parties and must be imposed prior to, rather than by virtue of, any claim of misappropriation. Davis v. Aetna, 293 U.S. at 333, 55 S.Ct. at 154; Upshur v. Briscoe, 138 U.S. at 378, 11 S.Ct. at 317, 34 L.Ed. at 936. Accordingly, implied or constructive trusts and trusts ex ma-leficio are not deemed to impose fiduciary relationships under the Bankruptcy Code. Matter of Angelle, 610 F.2d at 1339. The reason for this narrow interpretation is to promote the Bankruptcy Code’s “fresh start” policy. Id. New Jersey v. Kaczynski (In re Kaczynski), 188 B.R. 770 (Bankr.D.N.J.1995). Whether a debtor was acting in a fiduciary capacity within the meaning of the Bankruptcy Code is a matter of federal law; however, federal courts look first to state law to see how the state treats the relationship. Under New Jersey case law directors of an insolvent corporation owe a fiduciary duty to creditors. Board of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 173 (3d Cir.2002) citing AYR Composition, Inc. v. Rosenberg, 261 N.J.Super. 495, 501, 619 A.2d 592 (App.Div.1993). That duty has been characterized as a quasi-trust relationship. Portage Insulated Pipe Co. v. Costanzo, 114 N.J.Super. 164, 166, 275 A.2d 452 (App.Div.1971). For state law purposes Casini in his capacity as a director owed a fiduciary duty to Graustein as a creditor of the insolvent corporation, Marine Investors, Inc. Does the fiduciary duty imposed by New Jersey courts on the directors of insolvent corporations constitute “acting in a fiduciary capacity” within the meaning of § 523(a)(4) as interpreted by the Supreme Court? The reasons which lead the Court to find an agent, a borrower, and car dealer not to be acting in a fiduciary capacity suggest that a corporate director is not the type of fiduciary whose debts should be excepted from discharge. Viewing the phrase fiduciary" }, { "docid": "3234243", "title": "", "text": "888, 896 (Bankr.N.D.Ind.2007). Some lower federal courts in this circuit have nevertheless held that officers and directors of an insolvent corporation are also fiduciaries for purposes of section 523(a)(4). See Energy Prods. Eng’g, Inc. v. Reuscher (In re Reuscher), 169 B.R. 398, 402-03 (S.D.Ill.1994) (finding fiduciary relationship); Central Ill. Bank v. Suhadolnik (In re Suhadolnik), Nos. 07-71951, 08-7115, 2009 WL 801611, at *2 (Bankr.C.D.Ill. Mar.23, 2009) (same); Salem Servs., Inc. v. Hussain (In re Hussain), 308 B.R. 861, 867-68 (Bankr.N.D.Ill. 2004) (same); but see Barber v. Martin (In re Martin), 162 B.R. 710, 714 (Bankr.C.D.Ill.1993) (finding no fiduciary relationship). The problem with these decisions, as a recent contrary decision points out, is that the “trust fund” doctrine from state corporate law creates a fiduciary relationship between officers and directors and all creditors of the corporation, not a single creditor like Wachovia, and creates a remedy for the benefit of all creditors, not a single creditor like Wachovia. Associated Bank, N.A. v. Sever (In re Sever), 438 B.R. 612, 629 (Bankr.C.D.Ill.2010); see also Prime Leasing, 332 Ill.App.3d at 314, 265 Ill.Dec. 722, 773 N.E.2d at 97 (noting that under Illinois law the fiduciary duty “runs to all creditors as a group, and not to any individual creditor”). The remedy for breach of fiduciary duty, in other words, is strictly a collective one. “The liability of an officer to the corporation and the creditor body ... does not translate into recovery by an individual creditor, either before or after bankruptcy.” Sever, 438 B.R. at 629; see also Economic Dev. Growth Enters. Corp. v. McDermott (In re McDermott), 434 B.R. 271, 281 (Bankr.N.D.N.Y.2010) (rejecting “direct claims” of creditors under section 523(a)(4) employing “trust fund doctrine” applicable “only to derivative claims asserted on behalf of a corporation”). In Count IV, Wachovia alleges facts giving rise only to a fiduciary duty running from Jahelka to all creditors and thus a potential remedy for all creditors. No facts are alleged showing a fiduciary duty owed to Wachovia itself. In the absence of a fiduciary relationship “specifically between” Jahelka and Wachovia, there can be no nondischargeable debt" }, { "docid": "11440699", "title": "", "text": "Ehlenbeck v. Patton (In re Patton), 58 B.R. 149 (W.D.N.C.1986) (attorney was fiduciary whose embezzlement of funds entrusted to him by client for purchase of real estate); Brawer v. Gelman (In re Gelman), 47 B.R. 735 (Bankr.S.D.Fla.1985) (State court judgment against debtor for legal malpractice was non-dischargeable as debt for breach of fiduciary duty); Cohen v. Sparrow (In re Sparrow), 30 B.R. 278 (Bankr.S.D.Fla.1983) (State court judgment based on debtor’s mismanagement of funds in debtor’s attorney escrow account belonging to plaintiff was nondischargeable as defalcation by a fiduciary); In re Gelson, 12 F.Supp. 924 (E.D.N.Y.1935) (an attorney who receives money which is the property of his client does so while acting in a fiduciary capacity). . CORPORATE OFFICERS, DIRECTORS AND SHAREHOLDERS: Mercedes Benz Credit Corp. v. Carretta (In re Carretta), 219 B.R. 66 (Bankr.D.N.J.1998) (principal of corporation was fiduciary to corporation's creditors upon insolvency of corporation); Mid America Distribution Centers, Inc. v. Cato (In re Cato), 218 B.R. 987 (Bankr.M.D.Fla.1998) (corporate officer was not fiduciary to corporation); M-R Sullivan Mfg. Co., Inc. v. Sullivan (In re Sullivan), 217 B.R. 670 (Bankr. D.Mass.1998) (under Arizona law, a corporate officer or director owes a fiduciary duty to the corporation); Miramar Resources, Inc. v. Shultz (In re Shultz), 208 B.R. 723 (Bankr.M.D.Fla.1997) (corporate director became corporate fiduciary when corporation became insolvent under Delaware trust fund doctrine); Energy Prods. Eng'g, Inc. v. Reuscher (In re Reuscher), 169 B.R. 398 (S.D.Ill.1994) (fiduciary duty of corporate officers and directors arises upon insolvency or dissolution of the corporation for purposes of nondis-chargeability of debt under 11 U.S.C. § 523(a)(4)); Tricentrol Overseas, Ltd. v. Touchstone (In re Touchstone), 153 B.R. 955 (Bankr.S.D.Fla.1993) (fiduciary duty of corporate officer to corporation as to corporate property gave rise to technical trust, rather than implied or constructive trust, so as to render debt nondischargeable as defalcation as a fiduciary); LaPointe v. Brown (In re Brown), 131 B.R. 900 (Bankr.D.Me.1991) (corporate officer was fiduciary to corporation); Pan-Western Life Ins. Co. v. Galbreath (In re Galbreath), 112 B.R. 892 (Bankr.S.D.Ohio 1990) (director of corporation was a fiduciary); Gillespi v. Jenkins (In re Jenkins), 110" }, { "docid": "11440737", "title": "", "text": "part, 218 B.R. 58 (9th Cir. BAP 1998) (attorney was not fiduciary but could be held liable for fraud or misrepresentation against client); Tudor Oaks, 124 F.3d 978 (attorney who represented partnership was fiduciaiy to partners; fiduciaiy status is question of Federal law); Weisberger v. Guth (In re Guth), 210 B.R. 294 (Bankr.N.D.Ohio 1997) (attorney who agreed to share fees was not fiduciary to other attorney); In the Matter of Woldman, 92 F.3d 546 (7th Cir.1996) (two lawyers who were joint venturers were not fiduciaries to each other). . Mercedes-Benz, 219 B.R. 66 (principal of corporation was fiduciary to corporation's creditors upon insolvency of corporation); M-R Sullivan, 217 B.R. 670 (technical trust is one imposed law and may be created by state statute or common law; under Arizona law, a corporate officer or director owes a fiduciaiy duty to the corporation); Miramar Resources, Inc. v. Shultz (In re Shultz), 208 B.R. 723 (Bankr.M.D.Fla.1997) (corporate director became corporate fiduciaiy when corporation became insolvent under Delaware trust fund doctrine); Energy Products Eng'g, 169 B.R. 398 (fiduciary duty of corporate'officers and directors arises upon insolvency or dissolution of the corporation for purposes of non-dischargeability of debt under 11 U.S.C. § 523(a)(4)); Tricentrol Overseas, 153 B.R. 955 (fiduciary duty of corporate officer to corporation as to corporate property gave rise to technical trust, rather than implied or constructive trust, so as to render debt nondis-chargeable as defalcation by a fiduciaiy). Pan-Western Life Ins. Co. v. Galbreath (In re Galbreath), 112 B.R. 892 (Bankr.S.D.Ohio 1990) (corporate director was a fiduciary and his debt was nondischargeable); LaPointe v. Brown (In re Brown), 131 B.R. 900 (Bankr.D.Me.1991) (corporate officer was fiduciaiy to corporation); Gillespi v. Jenkins (In re Jenkins), 110 B.R. 74 (Bankr.M.D.Fla.1990) (held, debtor committed embezzlement but also committed defalcation while acting in a fiduciaiy capacity; debtor/president/sole shareholder of corporation was fiduciaiy to surety on public projects created by indemnity agreement, not by penal statute); Bakis v. Snyder, 101 B.R. 822 (fiduciary duties of corporate director under state law satisfied requirements of Section 523(a)(4)); Mostiler, 100 B.R. 802 (property management corporation and corporate officer who was" }, { "docid": "12698108", "title": "", "text": "re Kaplan), 162 B.R. 684, 705 (Bankr.E.D.Pa.1993), aff'd, 189 B.R. 882 (E.D.Pa.1995), wrote: [T]he difficulty with finding that the relationship of the director of a corporation to its creditors automatically gives rise to an express trust of all assets held by that corporation for purposes of § 523(a)(4) broadens the scope of that provision to embrace a debtor/creditor relationship. Such an extension of § 523(a)(4) is, in our view, a stretch of § 523(a)(4) beyond the purpose for which it was intended. Accordingly, this court holds that Casini was not acting in a fiduciary capacity with respect to Graustein as a creditor of the insolvent corporation, Marine Investors, Inc. Thus Graustein’s debt is not excepted from discharge under § 523(a)(4). The court recognizes a substantial body of case law that treats a director of an insolvent corporation as a fiduciary under § 523(a)(4). Prominent among them is Mercedes-Benz Credit Corp. v. Carretta (In re Carretta), 219 B.R. 66 (Bankr.D.N.J.1998). The facts in Carretta are similar to those in Casini’s case. The debtor, Carretta, was accused of breach of fiduciary duty by appropriating the assets of an insolvent corporation to form a new corporation controlled by him. The debtor moved to dismiss the complaint under Fed. R. Civ. Pro. 12(b)(6) on the grounds that a director of an insolvent corporation is not “acting in a fiduciary capacity” within the meaning of § 523(a)(4). The court surveyed all of the case law on the subject and concluded that the complaint stated a cause of action for nondischargeability. Another decision by a bankruptcy court in this circuit held that a director of a dissolving Pennsylvania corporation was acting in a fiduciary capacity within the meaning of § 523(a)(4). United States v. Bagel (In re Bagel), 1992 WL 477052 (Bankr.E.D.Pa.1992). Once again the court made an exhaustive review of the case law involving corporate fiduciaries and § 523(a)(4). The court granted summary judgment to the creditor holding that a state court jury verdict finding a breach of Pennsylvania’s common law fiduciary duty collaterally estopped the debtor from challenging nondischargeability. Furthermore, the Third Circuit has" }, { "docid": "18793268", "title": "", "text": "used by Congress in denying discharge where there has been misappropriation by a bankrupt while acting “in any fiduciary capacity” ... Not all agents act in a fiduciary capacity; but, certainly, an agent is acting in such capacity where he is handling funds which have been entrusted to him to be applied to a specific purpose ... (emphasis added) Id. at 80, 81. It is well established that corporate officers occupy a fiduciary relationship to the corporation and its creditors. Black’s Inc. v. Decker (In re Decker), 36 B.R. 452, 457 (D.N.D.1983) (the fiduciary relationship required under 11 U.S.C. § 523(a)(4) includes the fiduciary relationship between a corporate officer or director and the corporation); United Virginia Bank v. Fussell (In re Fussell), 15 B.R. 1016, 1021 (W.D.Va. 1981); Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939). Indeed, the president of a private corporation entrusted with funds for a particular purpose ... (has) been held to be acting in a fiduciary capacity within the meaning of this [11 U.S.C. § 523(a)(4)] provision. Fussell, 15 B.R. at 1021, quoting 3 Collier on Bankruptcy, § 523.14 at 523-104 (15th ed. 1984). See also, Bloemecke v. Applegate, 271 F. 595 (3d Cir.1921); In re Bernard, 87 F.2d 705 (2d Cir.1937) (officer’s liabilities created by a known breach of duty to the corporation not dischargeable); In re Hammond, 98 F.2d 703 (2d Cir.1938), cert. denied, 305 U.S. 646, 59 S.Ct. 149, 83 L.Ed. 418 (1938) (corporate director was a fiduciary under the former Act); John P. Maguire & Co. v. Herzog, 421 F.2d 419 (5th Cir.1970) (managing officer’s use of corporate office to obtain a personal benefit at the expense of corporate creditors caused creditors’ claims to be nondischargeable under section 17(a)(4) of the former Act). In Fussell, the debtor was held to have misused his position as a corporate officer to obtain repayment of his personal loans to the corporation, in direct contravention of a subrogation agreement and in violation of his fiduciary duties. The federal district court in Virginia applied § 523(a)(4) of the Code to prevent the" }, { "docid": "4583120", "title": "", "text": "he acted in fiduciary capacity for purposes § 523(a)(4)). This is so, notwithstanding the bankruptcy court’s summary conclusion that outside of ERISA, no other basis existed for finding a fiduciary status under § 523(a)(4). This statement overlooks that in addition to statutes, common law also can give rise to a technical trust. See In re D’Abrosca, 2011 WL 4592338, at *5. As the Panel previously noted in D’Ab-rosca, supra, “one must look further to ascertain whether the relationship was imbued with attributes giving rise to, in substance, a trust.” 2011 WL 4592338, at *5 (citing In re Brown, 131 B.R. at 905). “[T]he central focus of the inquiry under § 523(a)(4) [is] whether the alleged fiduciary exercises actual control over the alleged beneficiary’s money or property.” May v. Lyon (In re Lyon), 348 B.R. 9, 25 n. 34 (Bankr.D.Conn.2006) (citing In re Marchiando, 13 F.3d 1111 (7th Cir.1994)). “It is clear that the issue of control has always been the critical fact looked to by the courts in imposing this high level of responsibility.” Id. (citing LSP Inv. P’ship v. Bennett (In re Bennett), 989 F.2d 779 (5th Cir.1993)); see also In re Harwood, 637 F.3d at 624 (chief operating officer of corporate general partner exercised complete control over partnership’s management, compelling conclusion that he stood in the same fiduciary capacity to the limited partners as a trustee stands to the beneficiaries of a trust and thus acted in a fiduciary capacity for § 523(a)(4) purposes). Certain inescapable conclusions follow from an examination of the critical issue of Fahey’s control. Because Fahey assumed unfettered control over the unpaid contributions (which constitute plan assets), served as Zani’s sole shareholder, officer, accounting supervisor, and decision-maker, and functioned as the only entity with control of deciding whether and when to pay Zani’s contributions to the Funds, the record supports a determination that his relationship to the Funds was functionally that of a fiduciary. See In re Brown, 131 B.R. at 905 (given principal’s unfettered control of and access to corporation’s assets, his relationship to corporation “was in substance no different than that of" }, { "docid": "18038344", "title": "", "text": "279, 288-89, 111 S.Ct. 654, 660 (1991). Plaintiff does not argue that an express or technical trust was found by the State Court but only that Judge Mclnerney found that Defendant was a fiduciary. However, as noted above, that finding alone is not dispositive. Bankruptcy requires something more. However, Plaintiff has failed to articulate how the elements of an express or technical trust were established in this case. Simply quoting the court in Bellity v. Wolfington (In re Wolfington), 48 B.R. 920, 924 (Bankr.E.D.Pa.1985), Plaintiff contends that a fiduciary relationship is established where the property of one person is placed in charge of another. Wolfington involved a debtor officer/director of a brokerage corporation who had control over the corporate escrow account containing money belonging to the creditor. The res of the trust was the creditor’s funds that were misappropriated pending closing of a sale, and the creditor’s funds were held in trust for the sole purpose of completing the closing. Plaintiff proffers that case for the proposition that a shareholder that has control over corporate assets is acting in a fiduciary capacity to other shareholders under § 523(a)(4). I find that reading of Wolfington to be overbroad. In Wolfing-ton the court expressly noted: More than a misappropriation of corporate funds was involved here. The misappropriated funds were, in fact, trust funds held in an account in the corporation’s name. Id. at 925. In comparison, Defendant, as the operating corporate officer, converted assets of Coin Call that if sold or collected would have generated corporate income. In so doing, he prevented that corporation from generating the profits it historically had earned and passed on to the shareholders, including Plaintiff. Clearly the corporate accounts receivable were not held in trust for the shareholders but rather were to be collected for use as Coin Call’s operating funds. By this conduct, Defendant breached his duty of loyalty to the corporation and its shareholders as Judge Mclnerney found. However, under these facts, I can neither identify an ascertainable res or the trust-like obligations that evidence an intention that a trust be imposed under common law." }, { "docid": "12698107", "title": "", "text": "capacity in context with executors, trustees and public officials, the quality or characteristics of the position of corporate director is more akin to the agent in Chapman v. Forsyth than a trustee of an express trust. Also, in terms of creating an exception t,o discharge that would likely sweep in too many debtors deserving a fresh start, treating a corporate director as acting in a fiduciary capacity would expose many owners of closely held companies to claims of nondischargeability by the creditors of their failed enterprises. After all, the failure of a small business is usually accompanied by the bankruptcy of the individual owners who have staked their fortunes on the success of their business and may have guaranteed a large part of the corporate debt. To treat them as the type of fiduciary covered by § 523(a)(4) exposes them to harassment by all corporate creditors who would have the bankruptcy court second guess every decision by the managers of a declining business. As the court in First Options of Chicago, Inc. v. Kaplan (In re Kaplan), 162 B.R. 684, 705 (Bankr.E.D.Pa.1993), aff'd, 189 B.R. 882 (E.D.Pa.1995), wrote: [T]he difficulty with finding that the relationship of the director of a corporation to its creditors automatically gives rise to an express trust of all assets held by that corporation for purposes of § 523(a)(4) broadens the scope of that provision to embrace a debtor/creditor relationship. Such an extension of § 523(a)(4) is, in our view, a stretch of § 523(a)(4) beyond the purpose for which it was intended. Accordingly, this court holds that Casini was not acting in a fiduciary capacity with respect to Graustein as a creditor of the insolvent corporation, Marine Investors, Inc. Thus Graustein’s debt is not excepted from discharge under § 523(a)(4). The court recognizes a substantial body of case law that treats a director of an insolvent corporation as a fiduciary under § 523(a)(4). Prominent among them is Mercedes-Benz Credit Corp. v. Carretta (In re Carretta), 219 B.R. 66 (Bankr.D.N.J.1998). The facts in Carretta are similar to those in Casini’s case. The debtor, Carretta, was accused" }, { "docid": "13626760", "title": "", "text": "agreement, and as corporate officer, director, and most importantly, controlling shareholder had made key decisions for the corporation including the decision not to remit the funds to the beneficiary; and (5) that as a result of his actions, debtor became personally hable for the defalcation, which obligation is excepted from discharge under § 523(a)(4). In Harrell, the Virginia district court relied in part on a similar bankruptcy ruling by a Maryland district court in Pan American World Airways, Inc. v. Folliard (In re Folliard), in which the same conclusion was reached that a misappropriation of trust property by a corporate officer makes the officer liable on a personal basis for the breach of trust. See 10 B.R. 875, 876-77 (D.Md.1981); see also Hodnett v. Loevner (In re Loevner), 167 B.R. 824, 826 (Bankr.E.D.Va.1994); Mostiler v. Couch (In re Couch), 100 B.R. 802, 808 (Bankr.E.D.Va.1988); Bellity v. Wolfington (In re Wolfington), 48 B.R. 920, 923 (Bankr.E.D.Pa.1985); Sun Life Ins. Co. v. Koszuth (In re Koszuth), 43 B.R. 104, 107 (Bankr.M.D.Fla.1984) (stating that debtor who knowingly causes misappropriation is personahy hable regardless of whether he profited personahy). But see Marchiando, 13 F.3d at 1115-16; Barclays American/Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 878-79 (8th Cir.1985). Furthermore, there is also reinforcement in recent bankruptcy case law of the basis for finding personal liability on the part of a corporate officer or fiduciary such as Davis. The following excerpt outlines a persuasive policy argument in favor of imposing personal liability on corporate fiduciaries: If the fiduciary relationship is not imposed upon the corporate officer charged with maintaining the fiduciary relationship, then § 523(a)(4) could be rendered meaningless in cases where the fiduciary relationship is estabhshed between a creditor and a corporate fiduciary only. All the debtor would have to do to avoid § 523(a)(4) is place the corporation in the position of the fiduciary rather than himself. Woodall, 177 B.R. at 522 n. 2 (citations omitted). The court rejects Davis’ defense that even if he was a fiduciary he did nothing wrong in that capacity. Defalcation is defined as “the" }, { "docid": "9435409", "title": "", "text": "on a claim. See 11 U.S.C. § 101(12). A claim, in turn, is defined as including a right to payment, “whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, secured, or unsecured.” 11 U.S.C. § 101(5)(A). Debt- or has cited no case law to the contrary. Although Debtor may have disputed her personal liability for the Judgment, the Judgment against NIM was final and undisputed. Therefore, the bankruptcy court properly included the Judgment when calculating NIM’s insolvency. V. CONCLUSION When a corporation becomes insolvent and ceases doing business, Oregon law requires the directors to hold the corporation’s assets in trust for the benefit of the corporate creditors. Because this fiduciary relationship arises independent of any wrongdoing, a defalcation committed after the fiduciary duty arises may be nondis-chargeable pursuant to § 523(a)(4). Effective October 1, 1995, NIM was insolvent and Debtor, as NIM’s sole director, owed NIM’s creditors a fiduciary duty to hold NIM’s assets in trust for their benefit. Because this fiduciary relationship arose independently of any wrongdoing, the bankruptcy court did not err in determining that Debtor was a fiduciary within the meaning of § 523(a)(4). In addition, the bankruptcy court properly included the Judgment as a liability when determining whether NIM was insolvent. Accordingly, we AFFIRM. . Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . It its opening brief, Plaintiff states that it was NIM’s sole unpaid creditor. . We note that other courts that have considered the issue have similarly held that a breach of the fiduciary duty imposed by the trust fund doctrine' may create a nondis-chargeable debt under § 523(a)(4). See Energy Prods. Eng’g, Inc. v. Reuscher (In re Reuscher), 169 B.R. 398, 403 (S.D.Ill.1994); Mercedes-Benz Credit Corp. v. Carretta (In re Carretta), 219 B.R. 66, 73-74 (Bankr.D.N.J.1998); Miramar Resources, Inc. v. Shultz (In re Shultz), 208 B.R. 723, 728-29 (Bankr.M.D.Fla.1997); Berres v. Bruning (In re Bruning), 143 B.R. 253, 255-56 (D.Colo.1992). . The bankruptcy court added the following items: (1) $96,321 in accounts receivable; (2) a" }, { "docid": "17569836", "title": "", "text": "re McDermott), 434 B.R. 271, 281 (Bankr.N.D.N.Y.2010), appeal docketed, No. 6:10-CV-0696 (N.D.N.Y. June 17, 2010) (determining that fiduciary obligations of officers of insolvent corporations are insufficient for the purposes of section 523(a)(4)); First Options of Chicago, Inc. v. Kaplan (In re Kaplan), 162 B.R. 684, 704-06 (Bankr.E.D.Pa.1993) (rejecting the premise that an officer’s debt would be non-dischargeable as a result of the corporation’s wrongdoing, despite state law making the officer a fiduciary). In this case, the bankruptcy court found that Follett had not proved that Berman & Associates was insolvent, so the court did not reach the question whether Berman, as a director and officer, had a fiduciary duty to creditors, let alone whether any such fiduciary duty qualified Berman’s debt as non-dischargeable under section 523(a)(4). Bearing in mind Berman’s controlling role in the corporation, his own personal bankruptcy, the end of the corporation’s business in 2006, and the corporation’s inability to pay what it owed to Follett, we believe the better approach is to address Follett’s argument on the merits, which can be decided as a matter of law. We hold that even if the evidence showed that Berman & Associates was insolvent when all or some part of the debt arose, so that Ber-man would have had a fiduciary duty toward creditors under Illinois law, this state law duty would not have constituted a basis for non-dischargeability of the debt owed to Follett under section 523(a)(4). Not all persons treated as fiduciaries under state law are considered to “act in a fiduciary capacity” for purposes of federal bankruptcy law. The existence of a fiduciary relationship under section 523(a)(4) is a matter of federal law. Frain, 230 F.3d at 1017. As we observed in In re McGee, bankruptcy law “depends on, and implements, entitlements defined by state law, but which of these entitlements is subject to discharge or a trustee’s avoiding power is beyond state control.” 353 F.3d 537, 540 (7th Cir.2003) (citations omitted). It is not sufficient to show merely that a debtor was a fiduciary under applicable state law. Although an officer or director of an insolvent" }, { "docid": "12698109", "title": "", "text": "of breach of fiduciary duty by appropriating the assets of an insolvent corporation to form a new corporation controlled by him. The debtor moved to dismiss the complaint under Fed. R. Civ. Pro. 12(b)(6) on the grounds that a director of an insolvent corporation is not “acting in a fiduciary capacity” within the meaning of § 523(a)(4). The court surveyed all of the case law on the subject and concluded that the complaint stated a cause of action for nondischargeability. Another decision by a bankruptcy court in this circuit held that a director of a dissolving Pennsylvania corporation was acting in a fiduciary capacity within the meaning of § 523(a)(4). United States v. Bagel (In re Bagel), 1992 WL 477052 (Bankr.E.D.Pa.1992). Once again the court made an exhaustive review of the case law involving corporate fiduciaries and § 523(a)(4). The court granted summary judgment to the creditor holding that a state court jury verdict finding a breach of Pennsylvania’s common law fiduciary duty collaterally estopped the debtor from challenging nondischargeability. Furthermore, the Third Circuit has found that a director who transferred funds of an insolvent corporation to himself violated his fiduciary duty to creditors. In re Docteroff, 133 F.3d 210 (3d Cir.1997). Recognizing the weight of authority concluding differently, the court is constrained to determine the second element of § 523(a)(4), i.e., whether there was a defalcation while acting in a fiduciary capacity. C. Defalcation Graustein suggests that Casini committed a defalcation by transferring valuable assets from the insolvent Marine Investors to a series of new corporations, leaving Marine Investors unable to pay anything to its creditors. The court finds as a fact that Casini did no such thing. Marine Investors failed. When it shut down all it had were a few molds of questionable value. Casini, like many entrepreneurs, still wanted to pursue his dream of designing and building boats. He started from scratch again with a new corporation. There is no proof that any of the assets of Marine Investors were diverted. Furthermore, Graustein has no proof as to any damages he may have suffered through Casini’s alleged" }, { "docid": "17569835", "title": "", "text": "corporate officers and directors for general corporate debts of faltering corporations. This theory has divided bankruptcy and district courts. Adopting the theory, for example, see Salem Services, Inc. v. Hussain (In re Hussain), 308 B.R. 861, 867-68 (Bankr.N.D.Ill.2004) (accepting theory but finding no defalcation); Energy Products Engineering, Inc. v. Reuscher (In re Reuscher), 169 B.R. 398, 402-03 (S.D.Ill.1994) (accepting theory and reversing bankruptcy court’s dismissal of complaint); see also Berres v. Bruning (In re Bruning), 143 B.R. 253, 256 (D.Colo.1992) (holding that a fiduciary obligation arises upon insolvency and falls within section 523(a)(4)’s ambit). Other courts have adopted a more limited view, recognizing that the Supreme Court has construed the scope of a fiduciary relationship under section 523(a)(4) more narrowly than state law does for other purposes. See, e.g., Murphy & Robinson Investment Co. v. Cross (In re Cross), 666 F.2d 873, 880-81 (5th Cir. Unit B 1982) (concluding that an officer did not owe the corporation’s creditor any fiduciary duty within the meaning of section 523(a)(4)); Economic Development Growth Enterprises Corp. v. McDermott (In re McDermott), 434 B.R. 271, 281 (Bankr.N.D.N.Y.2010), appeal docketed, No. 6:10-CV-0696 (N.D.N.Y. June 17, 2010) (determining that fiduciary obligations of officers of insolvent corporations are insufficient for the purposes of section 523(a)(4)); First Options of Chicago, Inc. v. Kaplan (In re Kaplan), 162 B.R. 684, 704-06 (Bankr.E.D.Pa.1993) (rejecting the premise that an officer’s debt would be non-dischargeable as a result of the corporation’s wrongdoing, despite state law making the officer a fiduciary). In this case, the bankruptcy court found that Follett had not proved that Berman & Associates was insolvent, so the court did not reach the question whether Berman, as a director and officer, had a fiduciary duty to creditors, let alone whether any such fiduciary duty qualified Berman’s debt as non-dischargeable under section 523(a)(4). Bearing in mind Berman’s controlling role in the corporation, his own personal bankruptcy, the end of the corporation’s business in 2006, and the corporation’s inability to pay what it owed to Follett, we believe the better approach is to address Follett’s argument on the merits, which can be decided" }, { "docid": "18741177", "title": "", "text": "Dept. of Lottery v. Marchiando, 13 F.3d 1111, 1116 (7th Cir.1994); (2) the debt was caused by the debtor’s fraud or defalcation; and (3) the debtor acted as fiduciary to the plaintiff at the time the debt was created. Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987); In re Pawlinski 170 B.R. 380, 388 (Bankr.N.D.Ill.1994) (Schmetterer, J.) (and cases cited). When determining whether a particular debtor was acting in a fiduciary-capacity for § 523(a)(4) purposes, courts must first look to federal law. See, e.g., In re Blumberg, 112 B.R. 236, 240 (Bankr.N.D.Ill. 1990) (Schmetterer, J.). The traditional non-bankruptcy definition of a “fiduciary” relationship — a relationship involving confidence, trust, and good faith — is “far too broad” and therefore not applicable in bankruptcy. Illinois Dept. of Lottery v. Marchiando, 142 B.R. 246, 249 (N.D.Ill.1992), aff'd, 13 F.3d 1111 (7th Cir.1994). The fiduciary relationship referred to in § 523(a)(4) is limited to express and technical trusts existing prior to the act creating the debt and without reference to that act. Id. Courts may, however, consider state law relevant in determining whether a debtor acting as a fiduciary under bankruptcy law. Blumberg, 112 B.R. at 240. “The state law creating the fiduciary relationship must, however, have imposed a trust on the property and set forth the fiduciary duties.” Marchiando, 142 B.R. at 249. With respect to the first and third elements of the test for fraud or defalcation outlined above, the State pleads that Volpert served as an officer and director of MOMG and thus “owe[d] a fiduciary duty to the Corporation not to use corporate assets for personal gain.” Volpert argues, however, that the “bare allegation” that he was an officer and director is not enough alone to plead fiduciary capacity because officers are not per se fiduciaries “by mere reason of office.” His argument is without merit. A Seventh Circuit panel recently suggested that a corporate director, by mere status of office, owes a fiduciary duty to shareholders for § 523(a)(4) purposes. See Marchiando, 13 F.3d at 115-16. Under Illinois law (applicable here since MOMG was an Illinois corporation)," }, { "docid": "17569834", "title": "", "text": "director assumes a fiduciary duty toward the corporation, its shareholders, and, upon the corporation’s insolvency, also to its creditors. See, e.g., Atwater v. American Exchange National Bank of Chicago, 152 Ill. 605, 38 N.E. 1017, 1022 (1893) (“directors ... occupy a fiduciary relation towards the creditors when the corporation becomes insolvent”); Paul H. Schwendener, Inc. v. Jupiter Electricity Co., 358 Ill.App.3d 65, 293 Ill.Dec. 893, 829 N.E.2d 818, 828 (2005) (“once a corporation becomes insolvent, the fiduciary duty of an officer is extended to the creditors of the corporation”); see also 5 William L. Norton, Jr., Norton Bankruptcy Law & Practice § 96:4 (3d ed. 2010) (majority view is that insolvency places corporate assets in trust for corporate creditors, and in some jurisdictions the fiduciary duty of directors shifts to include creditors). Follett argues that this duty under state law amounts to a fiduciary duty for purposes of federal bankruptcy law under section 523(a)(4). Accepting this argument, in the absence of proof of fraud, would go a long way toward imposing non-dischargeable personal liability on corporate officers and directors for general corporate debts of faltering corporations. This theory has divided bankruptcy and district courts. Adopting the theory, for example, see Salem Services, Inc. v. Hussain (In re Hussain), 308 B.R. 861, 867-68 (Bankr.N.D.Ill.2004) (accepting theory but finding no defalcation); Energy Products Engineering, Inc. v. Reuscher (In re Reuscher), 169 B.R. 398, 402-03 (S.D.Ill.1994) (accepting theory and reversing bankruptcy court’s dismissal of complaint); see also Berres v. Bruning (In re Bruning), 143 B.R. 253, 256 (D.Colo.1992) (holding that a fiduciary obligation arises upon insolvency and falls within section 523(a)(4)’s ambit). Other courts have adopted a more limited view, recognizing that the Supreme Court has construed the scope of a fiduciary relationship under section 523(a)(4) more narrowly than state law does for other purposes. See, e.g., Murphy & Robinson Investment Co. v. Cross (In re Cross), 666 F.2d 873, 880-81 (5th Cir. Unit B 1982) (concluding that an officer did not owe the corporation’s creditor any fiduciary duty within the meaning of section 523(a)(4)); Economic Development Growth Enterprises Corp. v. McDermott (In" }, { "docid": "18793269", "title": "", "text": "provision. Fussell, 15 B.R. at 1021, quoting 3 Collier on Bankruptcy, § 523.14 at 523-104 (15th ed. 1984). See also, Bloemecke v. Applegate, 271 F. 595 (3d Cir.1921); In re Bernard, 87 F.2d 705 (2d Cir.1937) (officer’s liabilities created by a known breach of duty to the corporation not dischargeable); In re Hammond, 98 F.2d 703 (2d Cir.1938), cert. denied, 305 U.S. 646, 59 S.Ct. 149, 83 L.Ed. 418 (1938) (corporate director was a fiduciary under the former Act); John P. Maguire & Co. v. Herzog, 421 F.2d 419 (5th Cir.1970) (managing officer’s use of corporate office to obtain a personal benefit at the expense of corporate creditors caused creditors’ claims to be nondischargeable under section 17(a)(4) of the former Act). In Fussell, the debtor was held to have misused his position as a corporate officer to obtain repayment of his personal loans to the corporation, in direct contravention of a subrogation agreement and in violation of his fiduciary duties. The federal district court in Virginia applied § 523(a)(4) of the Code to prevent the discharge of Fussell’s debt to the corporation. The court held that the improper application of corporate funds by the corporate officer for his personal benefit was a “defalcation” within the meaning of § 523(a)(4). The Court stated: Fussell’s dealings with U.V.B. were all undertaken pursuant to the subrogation agreement. The existence of the subro-gation agreement, when considered in conjunction with Fussell’s status as President, majority shareholder and member of the board of directors ... constitutes such a special relationship allowing U.V.B. as a corporate creditor, to maintain this cause of action ... It is uncon- troverted that Fussell personally benefited from the use of such funds. Section 523(a)(4) of the Bankruptcy Code is appropriately applied to prevent the discharge of such debts. Such a diversion of corporate funds to personal use in violation of the terms of the subordination agreement constitutes the “fraud or defalcation” within the meaning of § 523(a)(4). 15 B.R. at 1021. Upon consideration of the evidence presented in this case, we conclude that the debtor is liable, in his capacity as" }, { "docid": "3234242", "title": "", "text": "¶ 40). These allegations invoke concepts usually associated with state corporate law. Under Illinois law, corporate officers and directors typically owe fiduciary duties only to the corporation itself and its shareholders. Paul H. Schwendener, Inc. v. Jupiter Elec. Co., 358 Ill.App.3d 65, 75, 293 Ill.Dec. 893, 829 N.E.2d 818, 828 (1st Dist. 2005) (citing Brown v. Tenney, 125 Ill.2d 348, 360, 126 Ill.Dec. 545, 532 N.E.2d 230, 235 (1988)); Prime Leasing, Inc. v. Kendig, 332 Ill.App.3d 300, 314, 265 Ill.Dec. 722, 773 N.E.2d 84, 96 (1st Dist.2002). When the corporation becomes insolvent, however, its assets are considered a trust fund for the payment of creditors, and the fiduciary duties of the officers and directors extend to creditors. Paul H. Schwendener, Inc., 358 Ill.App.3d at 75, 293 Ill.Dec. 893, 829 N.E.2d at 828; Prime Leasing, 332 Ill.App.3d at 314, 265 Ill.Dec. 722, 773 N.E.2d at 96. Of course, “a fiduciary relationship under state law in a corporate context does not a ‘fiduciary’ under 11 U.S.C. § 523(a)(4) make.” Martello v. Fowers (In re Fowers), 360 B.R. 888, 896 (Bankr.N.D.Ind.2007). Some lower federal courts in this circuit have nevertheless held that officers and directors of an insolvent corporation are also fiduciaries for purposes of section 523(a)(4). See Energy Prods. Eng’g, Inc. v. Reuscher (In re Reuscher), 169 B.R. 398, 402-03 (S.D.Ill.1994) (finding fiduciary relationship); Central Ill. Bank v. Suhadolnik (In re Suhadolnik), Nos. 07-71951, 08-7115, 2009 WL 801611, at *2 (Bankr.C.D.Ill. Mar.23, 2009) (same); Salem Servs., Inc. v. Hussain (In re Hussain), 308 B.R. 861, 867-68 (Bankr.N.D.Ill. 2004) (same); but see Barber v. Martin (In re Martin), 162 B.R. 710, 714 (Bankr.C.D.Ill.1993) (finding no fiduciary relationship). The problem with these decisions, as a recent contrary decision points out, is that the “trust fund” doctrine from state corporate law creates a fiduciary relationship between officers and directors and all creditors of the corporation, not a single creditor like Wachovia, and creates a remedy for the benefit of all creditors, not a single creditor like Wachovia. Associated Bank, N.A. v. Sever (In re Sever), 438 B.R. 612, 629 (Bankr.C.D.Ill.2010); see also Prime Leasing, 332" }, { "docid": "4542171", "title": "", "text": "applies to assessing the scope of the trust relationship between Appellant and Ap-pellees. (See Appellant’s Initial Brief, DE 8, pp. 16-18). . Citing In re Phillips, 185, B.R. 121 (Bankr.E.D.N.Y.1995), the Bankruptcy Court stated \"State law determines when a fiduciary relationship exists for purposes of § 523(a)(4).” As discussed above, this is not an accurate statement. State law applies to determine the scope of the trust relationship between parties, but federal law governs the ultimate conclusion of whether that trust relationship constitutes a fiduciary relationship under § 523(a)(4). . In contrast, courts have held, applying non-New York law to the scope of the trust imposed, that directors and shareholders in a ■ close corporation do not owe a fiduciary duty under § 523(a)(4). See, e.g., In re Cantrell, 329 F.3d 1119 (9th Cir.2003) (holding that under California law, a corporate officer is not a fiduciary under § 523(a)(4)); In re Jones, 306 B.R. 352, 356 (Bkrtcy.N.D.Ala.2004) (holding that Alabama law does not impose sufficient trust obligations on a corporate officer and controlling shareholder of a closely held corporation to constitute a fiduciary duty under § 523(a)(4)); In re Blackburn, 209 B.R. 4, 9 (Bkrtcy.M.D.Fla.1997) (\"As a matter of federal law, the fiduciary duties owed to a Florida corporation by its officer and director under state law are insufficient by themselves to constitute the 'fiduciary capacity' required under Section 523(a)(4) of the Bankruptcy Code.”) . Specifically, Fla.Stat. § 607.0830, provides: (1) A director shall discharge his duties as a director, including his duties as a member of a committee: (a) In good faith; (b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and (c) In a manner he reasonably believes to be in the best interests of the corporation. . As discussed later, under In re St. Laurent, 991 F.2d 672 (11th Cir.1993), these non-dis-chargeable damages would include both compensatory and punitive damages imposed by the New York Court for breach of fiduciary duty. . The converse is also true-compensatory and punitive damages imposed as a result of Appellant’s fraud and breach of" }, { "docid": "3234241", "title": "", "text": "res, or (2) when the parties have an unequal relationship pre-existing the wrong, a relationship in which there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy over the latter.” In re Marchiando, 13 F.3d 1111, 1116 (7th Cir.1994); see also In re Frain, 230 F.3d 1014, 1017 (7th Cir.2000); Follett Higher Educ. Group, Inc. v. Berman, 427 B.R. 432, 437-38 (N.D.Ill.2010), appeal pending, No. 10-1882, 2011 WL 181482 (7th Cir.); Estate of Bartlett v. Vaccaro (In re Vaccaro), Nos. 09 B 8674, 09 A 476, 2010 WL 4053914, at *3-4 (Bankr.N.D.Ill. Oct. 14, 2010); Birriel v. Odeh (In re Odeh), 431 B.R. 807, 816 (Bankr.N.D.Ill.2010). In Count IV of its amended complaint, Wachovia relies on the “unequal relationship” theory to claim a fiduciary relationship with Jahelka. Wachovia alleges that Loop was insolvent at all relevant times. (Am. Compl. ¶ 39). Because Jahelka was president of Loop and Loop was insolvent, Wachovia continues, Jahelka owed a fiduciary duty to Loop’s creditors, including Wachovia. (Id. ¶ 40). These allegations invoke concepts usually associated with state corporate law. Under Illinois law, corporate officers and directors typically owe fiduciary duties only to the corporation itself and its shareholders. Paul H. Schwendener, Inc. v. Jupiter Elec. Co., 358 Ill.App.3d 65, 75, 293 Ill.Dec. 893, 829 N.E.2d 818, 828 (1st Dist. 2005) (citing Brown v. Tenney, 125 Ill.2d 348, 360, 126 Ill.Dec. 545, 532 N.E.2d 230, 235 (1988)); Prime Leasing, Inc. v. Kendig, 332 Ill.App.3d 300, 314, 265 Ill.Dec. 722, 773 N.E.2d 84, 96 (1st Dist.2002). When the corporation becomes insolvent, however, its assets are considered a trust fund for the payment of creditors, and the fiduciary duties of the officers and directors extend to creditors. Paul H. Schwendener, Inc., 358 Ill.App.3d at 75, 293 Ill.Dec. 893, 829 N.E.2d at 828; Prime Leasing, 332 Ill.App.3d at 314, 265 Ill.Dec. 722, 773 N.E.2d at 96. Of course, “a fiduciary relationship under state law in a corporate context does not a ‘fiduciary’ under 11 U.S.C. § 523(a)(4) make.” Martello v. Fowers (In re Fowers), 360 B.R." } ]

[ { "docid": "15083303", "title": "", "text": "The placemats and table runners were classified under subheading 6302.51.40 and the napkins under subheading 6302.51.20; the dhurrie rugs were classified under subheading 5702.99.1010. On appeal the parties stipulated that these articles are prima facie classifiable as textile articles under Section XI. The Court of International Trade, applying Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir.1997), held that fifty-nine of the sixty-two articles are also prima facie classifiable under Chapter 95 as festive articles, and therefore that they are subject to Note l(t) of Section XI, which provides: Section XI, Notes 1. This Section does not cover: (t) Articles of Chapter 95 (for example, toys, games, sports requisites and nets); Section and Chapter Notes are not optional interpretive rules, but are statutory law, codified at 19 U.S.C. § 1202. See Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed.Cir.1999) (describing chapter notes as “statutory language” of the HTSUS). The Court of International Trade held, and we agree, that Note l(t) requires that if the Chapter 95 exclusion applies, it is irrelevant whether the articles are also classifiable as textile articles. Cf. Midwest of Cannon Falls, 122 F.3d at 1429 (“Note 2(ij) to chapter 69 states that the chapter does not cover ‘Articles of chapter 95.’ Accordingly, the issue here is whether the items at issue prima facie are classifiable under heading 9505. If so, then pursuant to note 2(ij), chapter 69, the items cannot fall under chapter 69 and must be classified under chapter 95.”) In Midwest of Cannon Falls the goods whose status as “festive articles” was in dispute were prima facie classifiable in Chapter 69, which contained an Exclusionary Note in the same words as Note l(t). Among other items there at issue were ceramic mugs and pitchers in the shape of a jack-o-lantern. Responding to arguments similar to those now presented, this court held that these items were classifiable as “festive articles,” even though they have a utilitarian purpose and prima facie fit another HTSUS heading. The government again argues that Chapter 95 is limited to entertainment items, and that table" } ]

[ { "docid": "12355542", "title": "", "text": "heading 8471 to exclude BenQ’s monitors from that heading. BenQ argues that the first clause of the non-binding Explanatory Note to heading 8471, which requires that a display unit of an ADP be capable of accepting a signal “only from the central processing unit of an [ADP],” conflicts with the statutory language of Note 5(B)(a) to Chapter 84, which states that a unit can be classified under heading 8471 if, amongst other things, it is “of a kind solely or principally used in an automatic data processing system.” Chapter 84, Note 5(B)(a) (emphasis added). See Appellee’s Br. 29 n. 9 (“To the extent that the Explanatory Notes to Heading 8471 (2002) at 1579 support the trial court’s reading of Note 5(E), we believe that the Explanatory Notes may conflict with Note 5(B) and, accordingly, do not govern here.”). BenQ’s principal argument is that the Court of International Trade should have determined, and that we should now determine, the “principal function” of the Deli™ monitors, as required by Section XVI, Note 3, HTSUS. BenQ urges that the monitors’ “principal function” is serving “as an output (display) unit of an ADP system,” and that the monitors thus should be classified in heading 8471 as “units” of ADPs. Appellant’s Br. 44. BenQ argues that Section XVI, Note 3, prevails over Chapter 84, Note 5(B)(a), and the “principal use” analysis under ARI 1(a), because the Chapter Note relates to only one of the competing headings, whereas both Chapter 84 and Chapter 85 fall within Section XVI. BenQ also argues that ARI 1 applies “[i]n the absence of special language or context which otherwise requires” and that Section XVI, Note 3 provides such “special language or context.” BenQ requests that we perform a principal function analysis through an application of the factors set forth in United States v. Carborundum Co., 63 CCPA 98, 536 F.2d 373, 377 (1976), even though those factors are typically used to establish whether merchandise falls within a particular class or kind for purposes of a principal use analysis. In the alternative, BenQ argues that we should remand the case to" }, { "docid": "21691112", "title": "", "text": "which occurs last in numerical order among those which equally merit consideration.” GRI 3(c), HTSUS. Assuming application of GRI 3(c) were appropriate, this would lead to classification of the cable bundle under subheading 8544.70.00. Assuming that the HVDC cables no not provide the principal function, this argument hinges on whether the cable bundle is a composite machine. For reasons similar to those stated in the previous section, it is not. Composite machines “consist[ ] of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions.” Note 3 of Section XVI, HTSUS. The Explanatory Notes elaborate, describing composite machines as “consisting of two or more machines or appliances of different kinds, fitted together to form a whole, consecutively or simultaneously performing separate functions which are generally complementary and are described in different headings of Section XVI.” Explanatory Notes at 1387. The phrase “fitted together to form a whole” is nearly identical to the meaning of “assembled” in heading 8544. See supra Part 1(A)(2). The Explanatory Notes to Note 3 go even further, providing that two or more machines “should not be taken together to form a whole unless the machines are designed to be permanently attached either to each other or to a common base, frame housing, etc.” Explanatory Notes at 1388. Because each of the cables is fully-manufactured and capable of functioning independently, the cables are not “designed to be permanently attached ... to each other.” Id. Thus, just as ABB’s cables are not “fitted together to form a whole” within the meaning of 8544, they do not meet the requirements of the phrase within the context of composite machines within the meaning of Note 3 to Section XVI. CONCLUSION Because the three fully-manufactured, functional cables were fastened together after importation through a project-specific bundling process, they cannot be classified as the unassembled parts of a single fiber optic cable or composite machine. Customs classified the cables properly as three separate articles. Accordingly, ABB’s motion for summary judgment is DENIED, and the Government’s cross-motion" }, { "docid": "12355535", "title": "", "text": "of importation. For its part, the government urged that, in order for the DellTM monitors to be classified in heading 8471, BenQ must satisfy the criteria of Note 5(B) to Chapter 84, which requires a principal use analysis pursuant to HTSUS Additional U.S. Rule of Interpretation (“ARI”) 1(a). Chapter 84, Note 5(B)(a) states that a unit can be classified under heading 8471 if it is “of a kind solely or principally used in an automatic data processing system.” ARI 1(a) states in relevant part that, “[i]n the absence of special language or context which otherwise requires — (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” Such an analysis, the government contended, compelled the conclusion that the DellTM monitors could not be classified under HTSUS subheading 8471 because BenQ did not present evidence regarding the class or kind of goods to which the monitors belong. The government also pointed to an Explanatory Note to heading 8471 limiting “Display units of automatic data processing machines” to those machines that are “capable of accepting a signal only from the central processing unit of an automatic data processing machine.... ” World Customs Org., Harmonized Commodity Description & Coding System, Explanatory Notes (“Explanatory Notes”) 1579 (2002). In the government’s view, the Explanatory Note provided additional support for its position that the monitors should not be classified under heading 8471 because the Deli™ monitors accept signals from sources other than automatic data processing machines. According to the government, the monitors were properly classified in heading 8528, a provision encompassing video monitors. The Court of International Trade granted the government’s motion and denied BenQ’s motion, holding that Customs had properly classified the monitors under HTSUS heading 8528. BenQ, 683 F.Supp.2d at 1347-48. The court, however, followed an approach somewhat different from that urged by either BenQ or the government. Instead of" }, { "docid": "12355534", "title": "", "text": "the protest was deemed denied. II. BenQ filed suit in the Court of International Trade under 28 U.S.C. § 1581(a) to contest the denial of its protest. After designating the action a test case to control the outcome of at least one other action, the court entertained the parties’ respective motions for summary judgment. In its motion, BenQ argued that the court should apply a principal function analysis under Note 3 to HTSUS Section XIVI. Note 3 provides that, “[ujnless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.” According to BenQ, the principal function of the DellTM monitors is to serve as a monitor for a computer or an automatic data processing machine. Hence, they should be classified under HTSUS subheading 8471.60.45, as BenQ claimed at the time of importation. For its part, the government urged that, in order for the DellTM monitors to be classified in heading 8471, BenQ must satisfy the criteria of Note 5(B) to Chapter 84, which requires a principal use analysis pursuant to HTSUS Additional U.S. Rule of Interpretation (“ARI”) 1(a). Chapter 84, Note 5(B)(a) states that a unit can be classified under heading 8471 if it is “of a kind solely or principally used in an automatic data processing system.” ARI 1(a) states in relevant part that, “[i]n the absence of special language or context which otherwise requires — (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” Such an analysis, the government contended, compelled the conclusion that the DellTM monitors could not be classified under HTSUS subheading 8471 because BenQ did" }, { "docid": "21691111", "title": "", "text": "project and the industry confirm this by referring to cable bundles as a collection of individual, fully-assembled articles. Given the substantive aspects of the bundling operation, as well as the extensive terminological references to the bundling of multiple individual cables, Customs properly treated the HVDC cables and fiber optic cable as separate articles under subheadings 8544.60.40 and 8544.70.00, respectively. II. The Submarine Cables are not a Composite Machine In an alternative argument, ABB contends that the cable bundle constitutes a composite machine within the meaning of Note 3 of Section XVI, HTSUS, which provides that such machines are classified “as if consisting only of that component or as being that machine which performs the principal function.” Note 3 of Section XVI, HTSUS. ABB asserts that the cable bundle is a composite machine which “has no principal function.” Pl.’s Op. Br. at 18. Where the principal function of a composite machine cannot be determined, the Explanatory Notes indicate that recourse should be made to GRI 3(c), which provides that the article be “classified under the heading which occurs last in numerical order among those which equally merit consideration.” GRI 3(c), HTSUS. Assuming application of GRI 3(c) were appropriate, this would lead to classification of the cable bundle under subheading 8544.70.00. Assuming that the HVDC cables no not provide the principal function, this argument hinges on whether the cable bundle is a composite machine. For reasons similar to those stated in the previous section, it is not. Composite machines “consist[ ] of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions.” Note 3 of Section XVI, HTSUS. The Explanatory Notes elaborate, describing composite machines as “consisting of two or more machines or appliances of different kinds, fitted together to form a whole, consecutively or simultaneously performing separate functions which are generally complementary and are described in different headings of Section XVI.” Explanatory Notes at 1387. The phrase “fitted together to form a whole” is nearly identical to the meaning of “assembled” in heading 8544. See" }, { "docid": "12355554", "title": "", "text": "monitors: Of a kind solely or principally used in an automatic data processing system of heading 8471”); see also BenQ, 683 F.Supp.2d at 1347 n. 22. . The court also agreed with the government that the Explanatory Notes to heading 8471 confirm that the Deli™ monitors could not be classified under that heading because the monitors accept signals from video sources. See BenQ, 683 F.Supp.2d at 1346-47. . The Explanatory Note to Chapter 84, Note 5(E) states: In accordance with the provisions of Note 5(E) to Chapter 84, the following classification principles should be applied in the case of a machine incorporating or working in conjunction with an automatic data processing machine, and performing a specific function: (1) A machine incorporating an automatic data processing machine and performing a specific function other than data processing is classifiable in the heading corresponding to the function of that machine or, in the absence of a specific heading, in a residual heading, and not in heading 84.71. (2) Machines presented with an automatic data processing machine and intended to work in conjunction therewith to perform a specific function other than data processing, are to be classified as follows: the automatic data processing machine must be classified separately in heading 84.71 and the other machines in the heading corresponding to the function which they perform unless, by application of Note 4 to Section XVI or Note 3 to Chapter 90, the whole is classified in another heading of Chapter 84, Chapter 85 or of Chapter 90. Explanatory Notes 1395 (2004). . The Explanatory Notes to heading 8471 state: Among the constituent units included [under heading 8471] are display units of automatic data processing machines which provide a graphical presentation of the data processed. They differ from the video monitors and television receivers of heading 85.28 in several ways, including the following: (1) Display units of automatic data processing machines are capable of accepting a signal only from the central processing unit of an automatic data processing machine .... Explanatory Notes 1579 (2002). . The government also argues that Note 5(B)(a) invokes the concept of" }, { "docid": "12355548", "title": "", "text": "conjunction with an automatic data processing machine.” The Deli™ monitors do not incorporate ADP machines, but rather are separate and distinct units. Additionally, the government does not appear to dispute that when “performing a specific function other than data processing,” such as when the monitors are serving as video monitors for other devices such as DVD players and VCRs, the monitors are “working in conjunction” with those other devices, not with an automatic data processing machine. Further, to the extent that the Explanatory Note to heading 8471 prohibits classification in heading 8471 for those machines that are not “capable of accepting a signal only from the central processing unit of an automatic data processing machine,” it contradicts the express statutory language of Note 5(B)(a), which specifically provides for units that are merely “principally,” as opposed to “solely,” used in automatic data processing systems. Explanatory Notes 1579 (2002) (emphasis added); Chapter 84, Note 5(B)(a). Although the Court of International Trade relied on Note 5(E) in error, the remaining statutory requirements of Chapter 84, Note 5, must be met in order for the monitors to be classified under heading 8471. Thus, to determine if the Deli™ monitors can be classified under heading 8471 as BenQ argues, an analysis under Chapter 84 Note 5(B) must be undertaken. IV. It is undisputed that the requirements of paragraphs (b) and (c) of Note 5(B) are met in the Deli™ monitors. The question thus becomes whether the requirement of paragraph (a) (“of a kind solely or principally used in an automatic data processing system”) also is met. BenQ does not argue that the monitors are “solely” used in ADP systems. A determination of whether this requirement is met therefore requires an analysis of the “principal use” of the monitors unless, as BenQ argues, the “principal function” analysis of Section XVI, Note 3, overrides the “principal use” analysis of Note 5(B)(a). As previously noted, ARI 1(a) states that “a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the" }, { "docid": "1285144", "title": "", "text": "a more expansive coverage than Mitsubishi proposes. There is nothing in the plain language of Note 2(a) suggesting the use of a specificity analysis. Indeed, Explanatory Note II to Note 2 of Section XVI states that where parts “themselves constitute an article covered by a heading of this Section ... these are in all cases classified in their own appropriate heading even if specially designed to work as part of a specific machine. This applies in particular to: ... (8) Lifting, and handling machinery.” See generally Lonza, Inc. v. United States, 46 F.3d 1098, 1109 (Fed.Cir.1995) (“While the Explanatory Notes do not constitute controlling legislative history, they do offer guidance in interpreting [HTSUS] subheadings.”). Accordingly, we hold that Note 2(a) requires a part that falls under an appropriate general heading to be classified under that heading, even if it could also be classified more specifically as part of a machine. Mitsubishi asserts that this interpretation creates an incongruity between Note 2(a) and Note 4, which provides that “[wjhere a machine (including a combination of machines) consists of individual components ... intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.” According to Mitsubishi, Note 4 applies a specificity analysis to the classification of its parts, thereby conflicting with the Court of International Trade’s interpretation of Note 2(a). We do not see this alleged discord. Note 4 refers to the importation of a machine consisting of individual parts, not the importation of parts that can be used to build a machine. Therefore, it appears to apply only where substantially all the parts necessary to complete a machine are imported together. This interpretation is supported by Explanatory Note V to Section XVI, which declares that machines imported in an unassembled state “are classified as being the machine in question and not in any separate heading for parts.... However, unassembled components in excess of the number required for a complete machine ... are classified in their own appropriate" }, { "docid": "20673661", "title": "", "text": "Court need not apply the relative specificity provision of GRI 3(a). GRI 1 provides that “classification shall be determined according to the terms of the headings and any relative section or chapter notes.” Note 2(b) to Chapter XVI provides that “[o]ther parts, if suitable for use solely or principally with a particular kind of machine, * * * are to be classified with the machines of that kind or in heading * * * 8473 * * * as appropriate.” Because the relative section note provides that goods classifiable as parts of MFC machines shall be classified as such, the Court need not perform a relative specificity analysis under GRI 3(a). Ill Conclusion For the foregoing reasons, the Court finds that the subject merchandise must be classified under subheading 8473.30.50, HTSUS, as a “[p]art[] * * * suitable for use * * * principally with * * * machines of heading [8471]: [n]ot incorporating a cathode ray tube: [o]ther.” Customs emphatically denies that the PC 101 is accurately characterized as a “printing cartridge,” and instead refers to the PC 101 as a “‘PET’ film roll in a plastic housing.” Def.’s Response to Pl.’s Statement of Material Facts Not in Dispute (“Def.’s Undisputed Facts”), ¶¶ 4,6. The Court observes from Customs’s own exhibits, however, that the PC 101 is consistently described as a “printing cartridge” in its packaging and promotional literature. See, e.g., Def.’s Ex. A-4 (cardboard box); Def’s Ex. C (catalog). Of course, such labeling is not dispositive of the issue of the proper tariff classification of the merchandise. MFC machines typically combine the functions of a printer, digital copier, digital scanner, and facsimile machine. The Court recognizes that this determination contravenes certain language in a recent Court of International Trade decision suggesting otherwise. See Rubie’s Costume Co. v. United States, 26 CIT 209, 215, 196 F. Supp. 2d 1320, 1325 (2002) (“Where [ ] there are no material facts in dispute and only questions of law remain, Plaintiff must show legal error to overcome the statutory presumption of correctness.”). In so holding, Rubie’s Costume relied on Commercial Aluminum Cookware" }, { "docid": "7319251", "title": "", "text": "electric motors under heading 8501 of the Harmonized Tariff Schedule of the United States (HTSUS). Ni-dec timely challenged that determination by filing suit in the Court of International Trade. In its complaint, Nidec asserted that “[t]he imported merchandise consists of computer spindles for rigid disk drives” and should have been classified as “Parts and accessories ... suitable for use solely or principally with [automatic data processing] machines” under subheading 8473.30.40 of the 1989 HTSUS. After trial, the Court of International Trade upheld Customs’ classification. The court noted that Rule 1 of the HTSUS’ General Rules of Interpretation “mandates that ‘classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the [remaining General Rules].’ ” The court stated that “if the goods are electric motors, even though designed specifically for use in computers, this Rule 1 and Note 2 above require the classification for which Customs opted.” The court noted that Nidec had stipulated that “an ‘electric motor’ is ‘a device for transforming electric energy into mechanical power, and includes rotary motors.’” The court “concurred]” with the government’s position that the description of electric motors in the Explanatory Notes to heading 8501 “is ‘sufficiently broad to encompass motors of many types,’ including ‘motors which are designed to be used in specific machines’ ” and that “the spindle can be equated with a pulley, gear, or flexible shaft in that it transmits the mechanical energy created by the rotor and the stator to the merchandise’s intended load — the discs.” It concluded that the “essence” of the function that the spindle performs “is still that of a motor, not of a spindle, the connector to the discs,” and that Nidec’s product “cannot be classified under the HTSUS as more than that which drives the hard discs in a computer.” II. A. The Harmonized Tariff Schedule of the United States supplanted the former Tariff Schedule of the United States in 1989. Omnibus Trade and Competiveness Act of 1988, Pub.L. No. 100-418, 102 Stat." }, { "docid": "12355533", "title": "", "text": "or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included: Input or output units, whether or not containing storage units in the same housing: Other: Display units: Other: Other. In due course, Customs classified and reliquidated the monitors under HTSUS heading 8528, subheading 8528.21.70, dutiable at 5% ad valorem, and assessed duties on the monitors at that rate. Heading 8528 and subheading 8528.21.70 also are part of HTSUS Section XVI. Subheading 8528.21.70 provides for: Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus; video monitors and video projectors: Video monitors: Color: With a flat panel screen: Other: Other. BenQ filed a timely protest of Customs’ reclassification, arguing that the monitors are of a kind solely or principally used in an automatic data processing (“ADP”) system and thus classifiable under subheading 8471.60.45 pursuant to Notes 5(B) and (C) of Chapter 84 of the HTSUS. After Customs failed to take action on the protest, the protest was deemed denied. II. BenQ filed suit in the Court of International Trade under 28 U.S.C. § 1581(a) to contest the denial of its protest. After designating the action a test case to control the outcome of at least one other action, the court entertained the parties’ respective motions for summary judgment. In its motion, BenQ argued that the court should apply a principal function analysis under Note 3 to HTSUS Section XIVI. Note 3 provides that, “[ujnless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.” According to BenQ, the principal function of the DellTM monitors is to serve as a monitor for a computer or an automatic data processing machine. Hence, they should be classified under HTSUS subheading 8471.60.45, as BenQ claimed at the time" }, { "docid": "21691113", "title": "", "text": "supra Part 1(A)(2). The Explanatory Notes to Note 3 go even further, providing that two or more machines “should not be taken together to form a whole unless the machines are designed to be permanently attached either to each other or to a common base, frame housing, etc.” Explanatory Notes at 1388. Because each of the cables is fully-manufactured and capable of functioning independently, the cables are not “designed to be permanently attached ... to each other.” Id. Thus, just as ABB’s cables are not “fitted together to form a whole” within the meaning of 8544, they do not meet the requirements of the phrase within the context of composite machines within the meaning of Note 3 to Section XVI. CONCLUSION Because the three fully-manufactured, functional cables were fastened together after importation through a project-specific bundling process, they cannot be classified as the unassembled parts of a single fiber optic cable or composite machine. Customs classified the cables properly as three separate articles. Accordingly, ABB’s motion for summary judgment is DENIED, and the Government’s cross-motion is GRANTED. JUDGMENT WILL ENTER ACCORDINGLY. . Effective March 1, 2003, the U.S. Customs Service was renamed the Bureau of Customs and Border Protection of the United States Department of Homeland Security. See Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. 1 OS-32, at 4 (2003). For ease of discussion, this opinion refers to both incarnations as ''Customs.” . There is no dispute as to the meaning of HTSUS 8544.60.40, which applies to the electrical cables if they are treated as separate articles. . Although the Explanatory Notes are not binding on the court, they are recognized as instructive in clarifying legislative intent regarding the scope of HTSUS provisions. EM Industries, Inc. v. United States, 22 CIT 156, 162, 999 F.Supp. 1473, 1478 (1998). . ABB contends that, because of the persuasiveness of HQ Ruling 084958, its cables warrant similar treatment as \"composite cables.\" See PL's Op. Br. at 22-23 (discussing United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), which held that, depending on several" }, { "docid": "12355555", "title": "", "text": "to work in conjunction therewith to perform a specific function other than data processing, are to be classified as follows: the automatic data processing machine must be classified separately in heading 84.71 and the other machines in the heading corresponding to the function which they perform unless, by application of Note 4 to Section XVI or Note 3 to Chapter 90, the whole is classified in another heading of Chapter 84, Chapter 85 or of Chapter 90. Explanatory Notes 1395 (2004). . The Explanatory Notes to heading 8471 state: Among the constituent units included [under heading 8471] are display units of automatic data processing machines which provide a graphical presentation of the data processed. They differ from the video monitors and television receivers of heading 85.28 in several ways, including the following: (1) Display units of automatic data processing machines are capable of accepting a signal only from the central processing unit of an automatic data processing machine .... Explanatory Notes 1579 (2002). . The government also argues that Note 5(B)(a) invokes the concept of \"actual use” under ARI 1(b) and 19 C.F.R. §§ 10.131-10.139, HTSUS, but that BenQ did not satisfy any of the statutory or regulatory requirements for classification of the monitors based on \"actual use.” BenQ does not appear to dispute this contention. . In addition, we note that the government does not dispute that the DelfiM monitors are not “presented with” (i.e., imported with) automatic data processing machines. See Explanatory Notes 1395 (2004). . This is not the case where, for example, we must consider whether a classification covering vehicles principally used for automobile racing would cover a race car, even if the particular imported car was actually used solely in an advertising display. See Primal Lite, 182 F.3d at 1364." }, { "docid": "12355543", "title": "", "text": "the monitors’ “principal function” is serving “as an output (display) unit of an ADP system,” and that the monitors thus should be classified in heading 8471 as “units” of ADPs. Appellant’s Br. 44. BenQ argues that Section XVI, Note 3, prevails over Chapter 84, Note 5(B)(a), and the “principal use” analysis under ARI 1(a), because the Chapter Note relates to only one of the competing headings, whereas both Chapter 84 and Chapter 85 fall within Section XVI. BenQ also argues that ARI 1 applies “[i]n the absence of special language or context which otherwise requires” and that Section XVI, Note 3 provides such “special language or context.” BenQ requests that we perform a principal function analysis through an application of the factors set forth in United States v. Carborundum Co., 63 CCPA 98, 536 F.2d 373, 377 (1976), even though those factors are typically used to establish whether merchandise falls within a particular class or kind for purposes of a principal use analysis. In the alternative, BenQ argues that we should remand the case to the Court of International Trade for it to perform a principal function analysis. The government responds that we should affirm the Court of International Trade’s decision for several alternative reasons. First, the government points out that BenQ has admitted that the monitors are “capable of connection to a video source as video monitors.” BenQ, 683 F.Supp.2d at 1341. Thus, the government contends, the monitors fall squarely under heading 8528, which is a broad eo nomine provision covering, inter alia, “video monitors.” Next, the government argues that BenQ has not established that the monitors should be classified in heading 8471, which is directed to “Automatic data processing machines and units thereof.” BenQ, the government observes, does not argue that the monitors are ADP machines, but instead that they are “units thereof.” As noted above, Chapter 84, Note 5(B), provides statutory requirements for “units” of ADP systems, requiring at Note 5(B)(a) that such units be “of a kind solely or principally used in” an ADP system. The government argues, and BenQ does not dispute, that Chapter 84," }, { "docid": "15141289", "title": "", "text": "category encompassing all “[o]ther articles of glass,” HTSUS 7020. Customs rejected Structural Industries’ contentions, and in May of 2000 Structural Industries protested the classification in the Court of International Trade. On December 4, 2002, the Court of International Trade granted summary judgment in favor of Customs, upholding its classification of the clip frames under HTSUS heading 7013. The court noted that Rule 3(b) of the General Rules of Interpretation (“GRI”), which accompany the HTSUS and guide Customs in classifying imports, states that when the imported merchandise is “composite goods consisting of different materials or made up of different components ... [they] shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable,” GRI 3(b) (emphasis added). The court also considered the Explanatory Note for GRI 3(b), which expounds on the concept of “essential character,” stating that “[t]he factor which determines essential character will vary as between different kinds of goods” and may “be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” Structural Indus., 240 F.Supp.2d at 1332 (quoting Harmonized Commodity Description and Coding System, Explanatory Notes (“Explanatory Notes”), Note to Rule 3(b), (VIII) (2d ed.1996)). The Court of International Trade found that the clip frames at issue were “composite goods” governed by GRI 3(b), classifiable as either “other articles of wood” under subheading 4421 or as “glassware of a kind used for ... indoor decoration” under subheading 7013. Finding that “the glass component provide[d] the subject merchandise with its essential character,” the court held that Customs had properly classified the clip frames under subheading 7013. Id. at 1333. The court rejected Structural Industries’ contention that the clip frames should have been classified under a glass heading other than 7013, explaining that neither of the alternative headings urged by Structural Industries was appropriate. The merchandise could not be categorized under heading 7006 because that category “specifically excludes glass that is ‘framed or fitted with other" }, { "docid": "12355536", "title": "", "text": "not present evidence regarding the class or kind of goods to which the monitors belong. The government also pointed to an Explanatory Note to heading 8471 limiting “Display units of automatic data processing machines” to those machines that are “capable of accepting a signal only from the central processing unit of an automatic data processing machine.... ” World Customs Org., Harmonized Commodity Description & Coding System, Explanatory Notes (“Explanatory Notes”) 1579 (2002). In the government’s view, the Explanatory Note provided additional support for its position that the monitors should not be classified under heading 8471 because the Deli™ monitors accept signals from sources other than automatic data processing machines. According to the government, the monitors were properly classified in heading 8528, a provision encompassing video monitors. The Court of International Trade granted the government’s motion and denied BenQ’s motion, holding that Customs had properly classified the monitors under HTSUS heading 8528. BenQ, 683 F.Supp.2d at 1347-48. The court, however, followed an approach somewhat different from that urged by either BenQ or the government. Instead of employing either a principal use or principal function analysis, the court relied on Note 5(E) to Chapter 84, HTSUS, and the Explanatory Notes to heading 8471. The court determined that the Deli™ monitors can perform a specific function other than data processing, that function being serving as a video monitor for a video source. Id. at 1345. This ability, the court concluded, meant that the monitors could not be classified under heading 8471 because Note 5(E) provides that “[mjachines performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.” Note 5(E) to Chapter 84, HTSUS. Since the Deli™ monitors are admittedly capable of connection to a video source for use as video monitors, the court reasoned that they can “perform[] a specific function other than data processing” and thus had to be classified, not under heading 8471, but under “the heading[] appropriate to their respective function[ ]....”" }, { "docid": "20673660", "title": "", "text": "actually militates against the classification of the PET film roll within the PC 101 as photographic film. The court need not decide this issue, however, for assuming arguendo that the PET film roll within the PC 101 is prima facie classifiable as photographic film, the rationale underlying Congress’s intent that it be classified as such rather than as a part clearly does not apply. 3. By operation of GRI 1 and Section XVI Note 2(b), HTSUS the PC 101 must be classified under heading 8473 Customs claims that even if the PC 101 is prima facie classifiable both as a part of MFC machines and as photographic film, in accordance with QMS and GRI 3(a) it must be classified as the latter because that heading provides the more specific description. See QMS, 19 CIT at 561, 563. As discussed infra, the GRI must be applied in numerical order. See North Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001). Thus, if the application of GRI 1 provides the proper classification, the Court need not apply the relative specificity provision of GRI 3(a). GRI 1 provides that “classification shall be determined according to the terms of the headings and any relative section or chapter notes.” Note 2(b) to Chapter XVI provides that “[o]ther parts, if suitable for use solely or principally with a particular kind of machine, * * * are to be classified with the machines of that kind or in heading * * * 8473 * * * as appropriate.” Because the relative section note provides that goods classifiable as parts of MFC machines shall be classified as such, the Court need not perform a relative specificity analysis under GRI 3(a). Ill Conclusion For the foregoing reasons, the Court finds that the subject merchandise must be classified under subheading 8473.30.50, HTSUS, as a “[p]art[] * * * suitable for use * * * principally with * * * machines of heading [8471]: [n]ot incorporating a cathode ray tube: [o]ther.” Customs emphatically denies that the PC 101 is accurately characterized as a “printing cartridge,” and instead" }, { "docid": "21691110", "title": "", "text": "the electric and fiber optic cables is called bundling, which is a standard industry practice world-wide. It is used on almost all cable laying operations where two or more cables are to be buried with the use of an undersea remote operating vehicle.” Lindhe Aff. ¶ 13. An industry publication describing a submarine cable project at the Strait of Gibraltar exemplifies this conception of multiple cables as individual articles rather than something conceptually identical to a single-sheath composite cable: Two submarine optical fiber cables ... were also installed along the route.... These cables were bundled to two of the four power cables. Separate fiber — optic cables were used, as the technology to include the fiber optics within the cable armor was not fully developed. Ramon Granadino, Bridging the Strait of Gibraltar, Transmission & Distribution World, July 1, 1999, at 2, Pl.’s Op. Br., Ex. 5 (emphasis added). A technological or economic inability to assemble a single, suitable composite cable does not mean that alternative measures, such as bundling, constitute an assembly. Sources from the project and the industry confirm this by referring to cable bundles as a collection of individual, fully-assembled articles. Given the substantive aspects of the bundling operation, as well as the extensive terminological references to the bundling of multiple individual cables, Customs properly treated the HVDC cables and fiber optic cable as separate articles under subheadings 8544.60.40 and 8544.70.00, respectively. II. The Submarine Cables are not a Composite Machine In an alternative argument, ABB contends that the cable bundle constitutes a composite machine within the meaning of Note 3 of Section XVI, HTSUS, which provides that such machines are classified “as if consisting only of that component or as being that machine which performs the principal function.” Note 3 of Section XVI, HTSUS. ABB asserts that the cable bundle is a composite machine which “has no principal function.” Pl.’s Op. Br. at 18. Where the principal function of a composite machine cannot be determined, the Explanatory Notes indicate that recourse should be made to GRI 3(c), which provides that the article be “classified under the heading" }, { "docid": "12355537", "title": "", "text": "employing either a principal use or principal function analysis, the court relied on Note 5(E) to Chapter 84, HTSUS, and the Explanatory Notes to heading 8471. The court determined that the Deli™ monitors can perform a specific function other than data processing, that function being serving as a video monitor for a video source. Id. at 1345. This ability, the court concluded, meant that the monitors could not be classified under heading 8471 because Note 5(E) provides that “[mjachines performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.” Note 5(E) to Chapter 84, HTSUS. Since the Deli™ monitors are admittedly capable of connection to a video source for use as video monitors, the court reasoned that they can “perform[] a specific function other than data processing” and thus had to be classified, not under heading 8471, but under “the heading[] appropriate to their respective function[ ]....” BenQ, 683 F.Supp.2d at 1345-46 (quoting Note 5(E) to Chapter 84, HTSUS). That heading, according to the court, was the broad eo nomine heading 8528 (“Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus; video monitors and video projectors”) because the monitors are video monitors. Thus, the court upheld Customs’ classification of the monitors under subheading 8528.21.70. The court rejected BenQ’s reliance on Note 3 to Section XVI on the ground that the Note includes the express proviso that it applies “[u]nless the context otherwise requires.” Id. at 1341-42. The terms of heading 8471 and the relevant Chapter Notes, the court found, “plainly constitute a ‘context [which] otherwise requires,’ ” overriding the general default rule in Note 3 to Section XVI. Id. at 1342. BenQ timely appealed the decision of the Court of International Trade. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). Discussion I. Whether particular imported merchandise has been classified under an appropriate tariff provision generally entails a two-step process: (1) ascertaining the" }, { "docid": "12355541", "title": "", "text": "that the trial court erred in relying on Note 5(E) to Chapter 84, HTSUS, to exclude the monitors from heading 8471. According to BenQ, Note 5(E) applies only in two distinct situations: (1) in the case of a machine incorporating an ADP machine and performing a specific function other than data processing; or (2) in the case of a machine presented with an ADP machine and intended to work in conjunction with the ADP to perform a specific function other than data processing, as set forth in the Explanatory Note to Chapter 84, Note 5 At the time of importation BenQ’s mon itors did not incorporate an ADP machine, did not work in conjunction with an ADP to perform a function other than data processing, and were not presented with an ADP machine. Therefore, BenQ argues and the government agrees, the court’s reliance on Chapter 84, Note 5(E), was in error. The government also concedes BenQ’s second argument: that the Court of International Trade erroneously relied on the first clause of an Explanatory Note to heading 8471 to exclude BenQ’s monitors from that heading. BenQ argues that the first clause of the non-binding Explanatory Note to heading 8471, which requires that a display unit of an ADP be capable of accepting a signal “only from the central processing unit of an [ADP],” conflicts with the statutory language of Note 5(B)(a) to Chapter 84, which states that a unit can be classified under heading 8471 if, amongst other things, it is “of a kind solely or principally used in an automatic data processing system.” Chapter 84, Note 5(B)(a) (emphasis added). See Appellee’s Br. 29 n. 9 (“To the extent that the Explanatory Notes to Heading 8471 (2002) at 1579 support the trial court’s reading of Note 5(E), we believe that the Explanatory Notes may conflict with Note 5(B) and, accordingly, do not govern here.”). BenQ’s principal argument is that the Court of International Trade should have determined, and that we should now determine, the “principal function” of the Deli™ monitors, as required by Section XVI, Note 3, HTSUS. BenQ urges that" } ]

[ { "docid": "22864755", "title": "", "text": "of a doctrine the Supreme Court has rejected. Furthermore, we perceive no functional difference, for purposes of the ninety-day limit, between the Petitioner’s first petition and a motion to reopen or motion to reconsider that might distinguish this case from the case before the Supreme Court in Stone. None of these filings alters the finality of the BIA’s dismissal. In addition, we see danger in the contrary rule, which would encourage an alien to file a petition for review—thus staying his deportation and granting him time to search for new evidence—then withdrawing his petition in order to file a motion to reopen or reconsider, then, if his motions were denied by the BIA, simply filing a new petition for review. This cycle could continue endlessly unless we hold, as we do today, that a petitioner has ninety days from the date of the final deportation order to file his petition for review, notwithstanding any intervening motions or petitions he may choose to file. We therefore reject the Petitioner’s argument that his first petition, which was timely filed, tolled the period in which to file his second petition. We dismiss the Petitioner’s Petition for Review insofar as it seeks review of the summary dismissal. III. DENIALS OF THE MOTIONS TO REOPEN A. We review the BIA’s denials of both the Petitioner’s and Jason Caruneho’s motions to reopen for abuse of discretion. Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994). We defer to the decision of the BIA unless we find that it acted in a manner “arbitrary, irrational, or contrary to law.” Id. (quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985)); see also Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981). B. The law is well settled that the BIA may deny a motion to reopen for any one of at least three reasons: “failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the mov-ant would not be entitled to the discretionary grant of relief which he sought.”" } ]

[ { "docid": "22561124", "title": "", "text": "jurisdictional argument would have merit, as the petition to this court would be much too late. But Mejia instead seeks review of the BIA’s November 15, 2000, order denying his motion to reopen. The opening page of Mejia’s opening brief states that Mejia seeks review of the BIA order issued on November 15, 2000, and this statement is followed by a citation to the part of the record that contains the November 15 order. Mejia petitioned for review of the November 15 order denying his motion to reopen on December 14, 2000. According to the applicable transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”) and our case law, the petition was timely and this court has jurisdiction to review it. IIRIRA § 309(a), (c)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). ANALYSIS I. STANDARD OF REVIEW Denials of motions to reopen are reviewed for an abuse of discretion, although de novo review applies to the BIA’s determination of purely legal questions. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). Because Mejia argues for de novo review, the INS maintains that Mejia has waived review of the denial of his motion to reopen for abuse of discretion. Despite his citation of an incorrect standard of review, Mejia has presented several arguments that demonstrate how the BIA abused its discretion in denying Mejia’s motion to reopen. A failure to recite the proper standard of review does not constitute waiver of a properly raised merits issue. The cases cited by the INS are not to the contrary. Instead, they provide support for the unremarkable principle that the failure to argue an issue in an opening brief constitutes waiver. In the first ease relied upon by the INS, Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996), this court decided that when an appellant fails to argue that the BIA’s order denying his motion to reopen was incorrect, the appellant has waived review of that order. In that case, the BIA had denied Martinez^Serrano’s motion to reopen because Martinez-Serrano made arguments that" }, { "docid": "23086997", "title": "", "text": "does not express any disagreement with any part of the immigration judge’s decision, but instead cites Burbano, the BIA adopts his decision in its entirety”). In the alternative, the BIA found that Maharaj’s claim failed because the presumption of a well-founded fear of persecution had been rebutted by evidence of changed circumstances in Fiji. The BIA interpreted Maharaj’s motion to reopen as a motion to supplement the record, which it denied because the fax cover sheet was both unauthenticated and not convincing. Maharaj again petitioned the BIA to reopen his case based on the coup that occurred in Fiji in May 2000. The BIA denied Maharaj’s motion to reopen on October 8, 2003, noting that evidence of the May 2000 coup “was before the Board when we issued our prior decision.” Further, the BIA held that because Maharaj was ineligible for asylum on firm resettlement grounds, the evidence of changed country conditions was only relevant to Maharaj’s withholding of deportation and Convention Against Torture (CAT) claims. The BIA concluded that the evidence was not sufficient to establish a prima facie case of eligibility for withholding of deportation or CAT relief and therefore reopening was not warranted. Maharaj timely appeals the BIA decision affirming the IJ’s denial of asylum and withholding of deportation. Maharaj did not challenge the BIA’s denial of his motion to reopen in his opening brief and thus has waived appeal on that issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding that a petitioner’s failure to address the BIA’s denial of a motion to reopen in the argument portion of his opening brief on appeal waived the issue). II A finding of “firm resettlement” is a factual determination that we review under the deferential substantial evidence standard. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151-52 (9th Cir.2005) (applying substantial evidence standard to firm resettlement determination). Other circuits agree. See Sall v. Gonzales, 437 F.3d 229, 232 (2d Cir.2006) (per curiam); Firmansjah v. Gonzales, 424 F.3d 598, 601 (7th Cir.2005) (citing Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir.2004)); Salazar v. Ashcroft, 359 F.3d" }, { "docid": "22669588", "title": "", "text": "that, based on this approval, he had applied for adjustment of status to lawful permanent resident alien on October 28, 1997. On December 19, 1997, this court denied the Ekimians’ petition for review of the BIA’s denial of asylum. Ekimian v. INS, 133 F.3d 926 (9th Cir. Dec.19, 1997) (unpublished decision). On February 22, 1999, the BIA denied the Ekimians’ motion to reopen as untimely. Under 8 C.F.R. § 3.2(c)(2), a party-filed motion to reopen a proceeding must be filed within ninety days of the date on which the BIA renders a final administrative decision. The BIA had denied the Ekimians’ appeal from the IJ’s decision on April 28, 1997, which meant that a party-filed motion to reopen under § 3.2(c)(2) had been due on or before July 28, 1997. The Ekimians did not file their motion until November 20 of that year. The BIA also refused to reopen sua sponte. Under 8 C.F.R. § 3.2(a), the BIA may reopen a proceeding “on its own motion” “at any time.” The Ekimians now petition for review of the BIA’s refusal to reopen. II. Jurisdiction under the Transitional Rules Our jurisdiction to review the decision of the BIA in this case is governed by 8 U.S.C. § 1105a (repealed). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), repealed 8 U.S.C. § 1105a, but that repeal does not apply to this petition. The parties agree that this case falls under the transitional rules because deportation proceedings against the Ekimians were commenced before April 1, 1997, and a final order of deportation was entered after October 30,1996. III. Discussion The Ekimians make two central arguments. First, they argue that their motion to reopen should be treated as if it were timely even though it was made more than ninety days after the BIA denied their appeal from the IJ’s denial of their asylum application. Second, they argue that the BIA’s refusal to reopen on its own motion, or sua sponte, was an abuse of discretion, and that this court has jurisdiction to" }, { "docid": "22561123", "title": "", "text": "Mejia conceded deportability and renewed his application for asylum. The IJ denied this second asylum application one year later in an oral decision, but granted Mejia’s alternative request for voluntary departure. Although the IJ, as noted above, fully credited Mejia’s testimony, she ruled that Mejia failed to demonstrate eligibility for asylum. Nearly six years after Mejia filed his appeal from the IJ decision, a divided BIA panel denied it on May 30, 2000. In dissent, chairman Schmidt stated that Mejia had demonstrated that he feared persecution on account of imputed political opinion and thus merited asylum relief. Following this denial, Mejia filed a motion to reopen with the BIA, seeking to present new evidence. A divided BIA panel, chairman Schmidt again dissenting, denied this motion on November 15, 2000. Mejia petitions for review of this denial. JURISDICTION The INS argues that this court lacks jurisdiction to consider Mejia’s petition for review. If the INS was correct that Mejia was attempting to petition for review from the BIA’s May 30, 2000, denial of his appeal, its jurisdictional argument would have merit, as the petition to this court would be much too late. But Mejia instead seeks review of the BIA’s November 15, 2000, order denying his motion to reopen. The opening page of Mejia’s opening brief states that Mejia seeks review of the BIA order issued on November 15, 2000, and this statement is followed by a citation to the part of the record that contains the November 15 order. Mejia petitioned for review of the November 15 order denying his motion to reopen on December 14, 2000. According to the applicable transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”) and our case law, the petition was timely and this court has jurisdiction to review it. IIRIRA § 309(a), (c)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). ANALYSIS I. STANDARD OF REVIEW Denials of motions to reopen are reviewed for an abuse of discretion, although de novo review applies to the BIA’s determination of purely legal questions. See Rodriguez-Lariz v. INS," }, { "docid": "22607370", "title": "", "text": "apply for political asylum in the United States.” Cf. Mansour v. Ashcroft, 390 F.3d 667, 671-72 (9th Cir.2004) (holding that an IJ’s statements that he was “troubled by[ ] certain inconsistencies” and that the petitioner’s credibility was “suspect” amounted only to “an implicit adverse credibility determination,” which the court “refused to recognize”); Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir.2000) (holding that the Board did not make an adverse credibility finding when it “merely noted questions about [the petitioner’s] claim and concluded that [the petitioner] failed to meet his burden of establishing asylum eligibility”). b) We do not have jurisdiction to review the IJ’s conclusions. Alternatively, Toufighi has argued that if the IJ did reject his conversion to Christianity, the IJ’s finding was also in error. Although we have jurisdiction to hear this petition, our jurisdiction is limited to review of the Board’s Order of July 15, 2004, denying the motion to reopen. We are not permitted to review the Board’s Order entered May 21, 2002, dismissing Toufighi’s appeal of the IJ’s decision, because Toufighi failed to seek timely review of that order. The Supreme Court has held that a timely motion for reconsideration does not toll the running of the ninety-day period for review of final deportation orders. Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). By reasonable extension, a motion to reopen would also not toll the ninety-day period. See, e.g., Martinez-Serrano v. INS, 94 F.3d 1256, 1257-58 (9th Cir.1996); Caruncho v. INS, 68 F.3d 356, 360 (9th Cir.1995). Toufighi’s opportunity to appeal the original denial of his application lapsed ninety days after the Board’s Order of May 21, 2002. Because Toufighi’s motion to reopen was not filed until October 16, 2003, the IJ’s factual determinations in the original proceeding are conclusive. We consider only whether the alien satisfied the procedures, and presented a prima facie case for asylum based on the newly available evidence in light of the evidence presented in the original proceedings. See Bhasin, 423 F.3d at 984, 986 n. 3. Toufighi seeks to avoid this result, asserting" }, { "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": "22801530", "title": "", "text": "new evidence); Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.1998) (same). That Mendez-Gutierrez sought to reinstate his asylum application before the IJ issued an order of removal, rather than filing a motion to reopen after the order was issued, does not deprive us of meaningful standards for judicial review of the BIA’s action. Accordingly, we hold that we have jurisdiction to review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his withdrawn application for asylum, as we would over the denial of a motion to reopen. 8 U.S.C. § 1252(b). II. Because we are proceeding by analogy to the standards applicable to the denial of a motion to reopen, we review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his asylum application for abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002) (denial of motion to reopen is reviewed for abuse of discretion). Our review is limited to the grounds on which the BIA based its denial. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988). The BIA determined that Mendez-Gutierrez was not prejudiced by the IJ’s refusal to reinstate his asylum application because the application did not demonstrate prima facie eligibility for asylum, as it did not set forth a valid claim of past persecution. As we noted earlier, prima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen. See Ramirez-Alejandre, 319 F.3d at 376; In re G-C-L, 23 I. & N. Dec. 359 at 361. It was appropriate for the BIA to apply this requirement to Mendez-Gutierrez’s request for reinstatement, because it would be unreasonable to put the government to the time and expense of an eviden-tiary hearing on a previously terminated application if there is no chance that the application will be successful. The BIA therefore did not abuse its discretion by requiring Mendez-Gutierrez to show pri-ma facie eligibility for asylum. In determining that Mendez-Gutierrez’s application failed to make the required showing, however, the BIA’s inquiry was incomplete. “A person is prima facie eligible for asylum if he can show that he is a" }, { "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": "22561125", "title": "", "text": "282 F.3d 1218, 1222 (9th Cir.2002). Because Mejia argues for de novo review, the INS maintains that Mejia has waived review of the denial of his motion to reopen for abuse of discretion. Despite his citation of an incorrect standard of review, Mejia has presented several arguments that demonstrate how the BIA abused its discretion in denying Mejia’s motion to reopen. A failure to recite the proper standard of review does not constitute waiver of a properly raised merits issue. The cases cited by the INS are not to the contrary. Instead, they provide support for the unremarkable principle that the failure to argue an issue in an opening brief constitutes waiver. In the first ease relied upon by the INS, Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996), this court decided that when an appellant fails to argue that the BIA’s order denying his motion to reopen was incorrect, the appellant has waived review of that order. In that case, the BIA had denied Martinez^Serrano’s motion to reopen because Martinez-Serrano made arguments that would apply only if he was charged with deportability as a smuggler, when in fact he was charged with entering without inspection. Id. at 1257. This court held that Martinez Serrano had waived any challenge to this decision because he did not address the grounds for the BIA’s denial of his motion to reopen in the argument section of his brief and instead addressed two entirely different issues. Id. at 1260. In the current case, however, the argument section of Mejia’s opening brief directly addresses the basis of the BIA’s decision denying his motion to reopen: The BIA’s November 15 decision held that Mejia did not establish prima facie eligibility for asylum because he did not have a well-founded fear of persecution on account of a ground that entitles him to relief; Mejia’s opening brief argues for nine pages that he was eligible for asylum because he feared persecution on account of a ground that entitles him to relief. The other cases cited by the INS, Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996)," }, { "docid": "23086998", "title": "", "text": "to establish a prima facie case of eligibility for withholding of deportation or CAT relief and therefore reopening was not warranted. Maharaj timely appeals the BIA decision affirming the IJ’s denial of asylum and withholding of deportation. Maharaj did not challenge the BIA’s denial of his motion to reopen in his opening brief and thus has waived appeal on that issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding that a petitioner’s failure to address the BIA’s denial of a motion to reopen in the argument portion of his opening brief on appeal waived the issue). II A finding of “firm resettlement” is a factual determination that we review under the deferential substantial evidence standard. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151-52 (9th Cir.2005) (applying substantial evidence standard to firm resettlement determination). Other circuits agree. See Sall v. Gonzales, 437 F.3d 229, 232 (2d Cir.2006) (per curiam); Firmansjah v. Gonzales, 424 F.3d 598, 601 (7th Cir.2005) (citing Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir.2004)); Salazar v. Ashcroft, 359 F.3d 45, 50 (1st Cir.2004); Rife v. Ashcroft, 374 F.3d 606, 611-12 (8th Cir.2004); Elzour v. Ashcroft, 378 F.3d 1143, 1150-51 & n. 9 (10th Cir.2004); Abdille, 242 F.3d at 483 (3d Cir.2001); Mussie v. INS, 172 F.3d 329, 331 (4th Cir.1999). Under this standard, the BIA’s finding of firm resettlement “must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole,” and we will reverse only if a reasonable fact-finder would have been compelled to reach a different conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted); see also Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994). Ill The Attorney General has discretion to grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is an alien who is unable or unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social" }, { "docid": "22801529", "title": "", "text": "established a prima facie case of eligibility for relief); see also In re G-C-L, 23 I. & N. Dec. 359, 361 (BIA 2002) (prima facie eligibility for asylum is a requirement for granting a motion to reopen). In arguing that it was correct for the BIA to require a showing of prima facie eligibility, the government acknowledges the similarity between Mendez-Gutierrez’s reinstatement request and a motion to reopen, noting that, “like a motion to reopen, his reinstatement request sought to bring a closed matter back to life.” Moreover, aliens who have challenged removal proceedings after voluntarily withdrawing their applications for asylum typically have used motions to reopen as the procedural mechanism for bringing the challenge. See Cano-Merida v. INS, 311 F.3d 960, 963 (9th Cir.2002) (petitioner filed motion to reopen asylum application that he had voluntarily withdrawn after IJ warned him he had no valid claim for asylum); Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (petitioner withdrew asylum application, accepted voluntary departure, and then filed a motion to reopen asylum case based on new evidence); Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.1998) (same). That Mendez-Gutierrez sought to reinstate his asylum application before the IJ issued an order of removal, rather than filing a motion to reopen after the order was issued, does not deprive us of meaningful standards for judicial review of the BIA’s action. Accordingly, we hold that we have jurisdiction to review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his withdrawn application for asylum, as we would over the denial of a motion to reopen. 8 U.S.C. § 1252(b). II. Because we are proceeding by analogy to the standards applicable to the denial of a motion to reopen, we review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his asylum application for abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002) (denial of motion to reopen is reviewed for abuse of discretion). Our review is limited to the grounds on which the BIA based its denial. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988). The BIA determined that" }, { "docid": "23050029", "title": "", "text": "according to a State Department bulletin in effect at the time the motion was pending, a visa for a child of a lawful permanent resident was immediately available if the petition had a priority date of April 22, 1998, or earlier. In contrast, a visa for an unmarried son who did not qualify as a child could only receive a visa if his priority date was March 15, 1992, or earlier. Using the August 1992 priority date, Ochoa-Amaya could show a visa was “immediately available” only if he qualified as a child under the CSPA. BIA denied Ochoa-Amaya’s motion. Rejecting Ochoa-Amaya’s interpretation of the CSPA’s formula for calculating whether an alien qualifies as a child, BIA concluded that Ochoa-Amaya failed to meet his burden to establish prima facie eligibility for adjustment of status under 8 U.S.C. § 1255(1). Ochoa-Amaya timely filed a petition for review. II STANDARD OF REVIEW We have jurisdiction to review BIA’s denial of Ochoa-Amaya’s motion to reopen to apply for adjustment of status. de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). We review the denial of a motion to reopen for abuse of discretion. Id. (citing Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998)). In a motion to reopen, it is the movant’s burden to establish prima facie eligibility for the relief sought. Fernandez v. Gonzales, 439 F.3d 592, 595 (9th Cir.2006). We review de novo BIA’s determination of a purely legal question, de Martinez, 374 F.3d at 761. Where congressional intent is clear, we must “give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Ill DISCUSSION BIA may deny motions to reopen for various reasons, including statutory ineligibility, which was the only basis for BIA’s denial of Ochoa-Amaya’s motion. See Fernandez, 439 F.3d at 599 (setting forth grounds on which BIA may deny motion to reopen). Thus, we focus on BIA’s interpretation of the CSPA. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004). Congress enacted the CSPA to provide age-out" }, { "docid": "22717046", "title": "", "text": "by Torres. The motion essentially repeated the substance of petitioners’ previous appeal. The BIA denied this motion on June 13, 2000, concluding that petitioners had not identified any legal or factual error in the previous decision. On July 10, 2000, petitioners, represented by current counsel, filed the instant successive motion to reopen, arguing that they were prevented from timely filing their suspension applications due to the ineffective assistance of counsel and that exceptional circumstances existed that warranted reconsideration. On December 4, 2000, the BIA denied this motion and this petition for review followed. II. STANDARD OF REVIEW This Court reviews the BIA’s ruling on a motion to reopen for an abuse of discretion. Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). Questions of law are reviewed de novo, Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999), as are claims of due process violations in deportation proceedings, Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). III. JURISDICTION We must first decide whether we have jurisdiction to review the BIA’s denial of petitioners’ successive motion to reopen. The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by the Extension of Stay in United States for Nurses Act, Pub.L. No. 104-302, 110 Stat. 3656(Oet. 11, 1996), apply to this appeal, since deportation proceedings began in this case before April 1, 1997 (July 3, 1996) and a final order of deportation was entered after October 30,1996 (March 5, 1997). See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (stating that deportation and exclusion proceedings 4136 pending before IIRIRA’s April 1, 1997 effective date are governed by special “transitional changes in judicial review” that apply to final orders of deportation or exclusion entered after October 30, 1996). Under § 309(c) of IIRIRA, this Court has jurisdiction to review a BIA decision under pre-IIRIRA § 106(a) of the INA, 8 U.S.C. § 1105a(a), unless a specified exception applies. One of the specified exceptions precludes judicial review of “any discretionary decision under section ... 244 of" }, { "docid": "23104644", "title": "", "text": "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 must grant a petition for review and, in an appropriate case, remand a case for further consideration when the denial of asylum was based on an error, of law. Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994). We accept the petitioner’s testimony as true when, as here, the IJ found him to be credible. Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). II At issue in this case is the interpretation of the statutory persecutor exception to asylum eligibility. That subsection provides: The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42). If a person qualifies as a “persecutor” under this section, he or she is also barred from withholding of removal relief. 8 U.S.C- § 1231(b)(3)(B). Although we have not considered this provision previously, we have interpreted a similar provision, 8 U.S.C. § 1251(a)(19), that provided for deportation of individuals who assisted" }, { "docid": "23558071", "title": "", "text": "11, 2002 decision denying Petitioners’ appeal from the Immigration Judge’s decision, and (3) the Board’s December 5, 2002 decision denying Petitioners’ motion to reopen the case. This court has jurisdiction to consider only the third decision, the Board’s December 5, 2002 decision declining to reopen the case. First, we do not review the Immigration Judge’s decision. There is “widespread consensus” that, in 8 U.S.C. § 1252(a)(1), Congress has granted the courts power to review only “final order[s]” of removal. Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001) (quoting the statute). “Because an alien facing removal may appeal to the BIA as of right, and because the BIA has the power to conduct a de novo review of [Immigration Judge] decisions, there is no ‘final order’ until the BIA acts.” Id. at 548-49 (citing Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.1991)). Second, we do not review the Board’s April 11, 2002 denial of Petitioners’ appeal. The statute providing for judicial review, 8 U.S.C. § 1252(b)(1), states that “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal.” That statutory time limit is “both mandatory and jurisdictional.” Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996) (discussing previous version of statute; declining to consider underlying denial of appeal and considering only denial of untimely motion to reopen). • Petitioners did not seek judicial review of the April 11, 2002 decision within thirty days of its issuance. Therefore, the court lacks jurisdiction to consider Petitioners’ objections to that decision. See, e.g., Flores v. Ashcroft, 76 Fed.Appx. 177, 2003 WL 22203779, at *1 (9th Cir. Sept.15, 2003) (“We lack jurisdiction to consider Flores’s contentions regarding the merits of the underlying order of deportation, because the petition for review is not timely as to that order.”) The petition for judicial review, filed with this court December 27, 2002, is timely only as to the Board’s December 5, 2002 denial of Petitioners’ motion to reopen the case. We therefore limit our review to that decision, applying the abuse of discretion standard. See" }, { "docid": "23150114", "title": "", "text": "counsel on the ground that there had been no prejudice. Hamoui immediately sought review by the petition for review that is now before us. Once notified of the BIA’s decision, the district court dismissed Hamoui’s habeas corpus petition for lack of jurisdiction but opted to keep its stay in effect. In a subsequent order, the district court clarified that it had not granted Hamoui a stay of removal but, rather, had entered an injunction against the INS, which prevented the INS from deporting the Hamoui family before we could rule on his petition for review. Hamoui appeals the dismissal of his habeas claim by the district court. The INS cross-appeals the district court’s injunction. I The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), apply to Hamoui’s petition for review because deportation proceedings were begun prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (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," }, { "docid": "22717047", "title": "", "text": "motion to reopen. The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by the Extension of Stay in United States for Nurses Act, Pub.L. No. 104-302, 110 Stat. 3656(Oet. 11, 1996), apply to this appeal, since deportation proceedings began in this case before April 1, 1997 (July 3, 1996) and a final order of deportation was entered after October 30,1996 (March 5, 1997). See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (stating that deportation and exclusion proceedings 4136 pending before IIRIRA’s April 1, 1997 effective date are governed by special “transitional changes in judicial review” that apply to final orders of deportation or exclusion entered after October 30, 1996). Under § 309(c) of IIRIRA, this Court has jurisdiction to review a BIA decision under pre-IIRIRA § 106(a) of the INA, 8 U.S.C. § 1105a(a), unless a specified exception applies. One of the specified exceptions precludes judicial review of “any discretionary decision under section ... 244 of the [INA]....” IIRIRA § 309(c)(4)(E). Under IIRIRA’s transitional rules, we have jurisdiction to review the BIA’s denial of a motion to reopen when a petitioner is ordered deported under § 241 of the INA. See Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998); see also Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). This is true even when a petitioner moves to reopen in order to seek suspension of deportation under INA § 244. Arrozal, 159 F.3d at 432. The review of a motion to reopen in this context is distinct from the direct review of a denial of suspension of deportation, which is precluded when the BIA makes discretionary determinations of the threshold eligibility requirements of “extreme hardship” and “good moral character” under § 244(a). See Kalaw, 133 F.3d at 1152. The initial jurisdictional issue is whether Arrozal applies to permit this court to review the BIA’s order denying petitioners’ motion. In this case, the underlying deportation order consisted of the IJ’s grant of petitioners’ request for voluntary departure in" }, { "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": "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": "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": "11669211", "title": "", "text": "that opportunity may have been restricted because of claimed difficulties in obtaining evidence. His failure to take advantage of that opportunity is to a substantial degree of his own making. As a general rule, a decision of this Court, in the absence of an appeal, becomes final 90 days after it is entered. See secs. 7481 and 7483. The decisions holding that these statutory provisions are absolute (see, e.g., Lasky v. Commissioner, 235 F. 2d 97 (9th Cir. 1956), affd. per curiam 352 U.S. 1027 (1957)), have been modified to provide that we have jurisdiction to set aside a decision which would otherwise be final where there is “fraud on the court.” Toscano v. Commissioner, supra; Kenner v. Commissioner, supra. Moreover, since the earlier decisions as well as those in Kenner and Toscano were rendered, this Court has been accorded status under article I of the United States Constitution. We find nothing in our new status, however, which expands the narrow exception to the general rule of finality of our decisions carved out by Toscano and Kenner. In those two cases, the Courts of Appeals at most indicated that the same exception which applies to the finality of United States District Court decisions (see rule 60(b) of the Federal Rules of Civil Procedure) governs our decisions, namely, that “fraud on the court” must be “only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in . the usual manner its impartial task of adjudging cases that are presented for adjudication.” See Kenner v. Commissioner, 387 F.2d at 689; Toscano v. Commissioner, 441 F.2d at 933, quoting 7 Moore, Federal Practice, sec. 60.33 (2d ed.). This same narrowly defined exception has been reiterated by at least one Circuit Court of Appeals in respect of decisions of this Court entered subsequent to the acquisition of article I status. Senate Realty Corp. v. Commissioner, 511 F.2d 929 (2d Cir. 1975). Taking the most favorable view of the allegations contained in petitioner’s" } ]

[ { "docid": "10400098", "title": "", "text": "defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjud[g]ing cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court.” Toscano v. Commissioner, 441 F.2d at 933, quoting 7 J. Moore, Federal Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the petitioners must show that an intentional plan of deception designed to improperly influence the Court in its decision has had such an effect on the Court. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 245-246 (1944); Toscano v. Commissioner, 441 F.2d at 935; Keys v. Dunbar, 405 F.2d 955, 957-958 (9th Cir. 1969), citing Atchison, Topeka & Santa Fe Railway Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Kraasch v. Commissioner, 70 T.C. 623, 626 (1978); see Kenner v. Commissioner, 387 F.2d at 691-692. When the Court entered the decisions in the petitioners’ cases, it did so in accordance with the clearly expressed intention of the parties to the agreement, and although the petitioners now urge a different interpretation of the agreement, we have rejected their requested interpretation. We are still of the opinion that the decisions were entered in accordance with the agreement, and there has been absolutely no evidence of any fraud on the Court. In the alternative, the petitioners argue that the decisions in their cases are void because the opinion in Heinz indicates that they were denied due process and, therefore, the Court has the power to vacate such decisions. The decision and opinion in Heinz were limited to those taxpayers who exercised their right to appeal decisions entered as a result of the agreement. The petitioners did not exercise their rights and failed to notify the Court of their due process claims until almost 2 years after our opinion in Gauntt. Additionally, there is no evidence that the Court of Appeals considered such a constitutional question. The phrase “due process” does not appear in its opinion and is" }, { "docid": "4536297", "title": "", "text": "of Appeals on tins point. In Kenner v. Commissioner, 387 F. 2d 689 (1968), the Court of Appeals for the Seventh Circuit held that the Tax Court does have the power to inquire into the integrity of its own decision even when such decision has become final but only in the extreme situation where such decision was produced by “fraud upon the court.” But see Jefferson Loan Co. v. Commissioner, 249 F. 2d 364 (C.A. 8, 1957), which holds that the Tax Court has no equitable jurisdiction to set aside a decision after it has become final even where fraud has been demonstrated. It should be pointed out, however, that no “fraud on the court,” as we understand the meaning of the phrase and as explained later in our opinion, was involved in the Jefferson Loan Co. case. There, the petitioner-corporation’s president and accountant had falsified income in order to conceal losses and financial weaknesses of the corporate taxpayer and the petitioner’s income tax liability and personal holding company tax liability determined in the Tax Court decision (under written stipulation) were based on these false income figures. In the light of this uncertainty it seems prudent to at least examine the substantive question involved in the motion to vacate before we decide whether to grant the motion for special leave to file out of time. In doing so we must first understand the limitations of the phrase “fraud on the court.” Some guidelines are at hand. / The court in the Kenner case carefully defined “fraud on the court” as embracing “only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” The court cites 7 Moore’s, Federal Practice, sec. 60.33, p. 512 (2d ed.), for this definition. To this definition, the text in Moore’s adds the following qualification: “Fraud inter partes, without more, should not be a fraud upon the Court * *" }, { "docid": "16701392", "title": "", "text": "final decision is limited. As we have previously stated: As a general rule, a decision of this Court, in the absence of an appeal, becomes final 90 days after it is entered. See secs. 7481 and 7483. The decisions holding that these statutory provisions are absolute (see, e.g., Lasky v. Commissioner, 235 F.2d 97 (9th Cir. 1956), affd. per curiam 352 U.S. 1027 (1957)), have been modified to provide that we have jurisdiction to set aside a decision which would otherwise be final where there is \"fraud on the court.” Toscano v. Commissioner, supra [441 F.2d 930 (9th Cir. 1971), vacating 52 T.C. 295 (1969)]; Kenner v. Commissioner, supra [387 F.2d 689 (7th Cir. 1968), affg. an unreported order of dismissal of this Court]. Moreover, since the earlier decisions as well as those in Kenner and Toscano were rendered, this Court has been accorded status under article I of the United States Constitution. We find nothing in our new status, however, which expands the narrow exception to the general rule of finality of our decisions carved out by Toscano and Kenner. In those two cases, the Courts of Appeals at most indicated that the same exception which applies to the finality of United States District Court decisions (see rule 60(b) of the Federal Rules of Civil Procedure) governs our decisions, namely, that \"fraud on the court” must be \"only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” See Kenner v. Commissioner, 387 F.2d at 689; Toscano v. Commissioner, 441 F.2d at 933, quoting 7 Moore, Federal Practice, sec. 60.33 (2d ed.). This same narrowly defined exception has been reiterated by at least one Circuit Court of Appeals in respect of decisions of this Court entered subsequent to the acquisition of article I status. Senate Realty Corp. v. Commissioner, 511 F.2d 929 (2d Cir. 1975). [Taub v. Commissioner, 64 T.C. 741, 750-751 (1975)," }, { "docid": "16701391", "title": "", "text": "United States v. Wissahickon Tool Works, Inc., 200 F.2d 936, 938 (2d Cir. 1952). In opposition to the petitioner’s motion, the Commissioner argues that the Tax Court never had jurisdiction of this case. Citing Rule 13 and sections 6212, 6213, and 7502, the Commissioner contends that the Tax Court’s jurisdiction is restricted by statute and cannot be enlarged regardless of the equities in a particular case. In addition, the Commissioner, citing Senate Realty Corp. v. Commissioner, 511 F.2d 929 (2d Cir. 1975), argues that the motion to vacate comes much too late and that the order of dismissal should not be vacated absent a showing of fraud upon the Court. Rule 123(c) provides: \"For reasons deemed sufficient by the Court and upon motion expeditiously made, the Court may set aside a default or dismissal or the decision rendered thereon.” This Court has previously recognized that whether to grant a motion under Rule 123(c) is within the sound discretion of the Court. Kraasch v. Commissioner, 70 T.C. 623 (1978). However, our jurisdiction to set aside a final decision is limited. As we have previously stated: As a general rule, a decision of this Court, in the absence of an appeal, becomes final 90 days after it is entered. See secs. 7481 and 7483. The decisions holding that these statutory provisions are absolute (see, e.g., Lasky v. Commissioner, 235 F.2d 97 (9th Cir. 1956), affd. per curiam 352 U.S. 1027 (1957)), have been modified to provide that we have jurisdiction to set aside a decision which would otherwise be final where there is \"fraud on the court.” Toscano v. Commissioner, supra [441 F.2d 930 (9th Cir. 1971), vacating 52 T.C. 295 (1969)]; Kenner v. Commissioner, supra [387 F.2d 689 (7th Cir. 1968), affg. an unreported order of dismissal of this Court]. Moreover, since the earlier decisions as well as those in Kenner and Toscano were rendered, this Court has been accorded status under article I of the United States Constitution. We find nothing in our new status, however, which expands the narrow exception to the general rule of finality of our decisions" }, { "docid": "20697994", "title": "", "text": "designed to improperly influence the court in its decision” before it may be deemed a “fraud upon the court.” Id. (quotations, omitted) (emphasis added). The court stressed that not all deceptive or improper conduct rises to the level of a “fraud upon the court.” Rather, “ ‘[fjraud upon the court’ ... embrace[s] only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Id. (quoting 7 Moore’s Federal Practice, 2d ed., p. 512, § 60.23). Thus, the “import [of Kenner] ... is to suggest that [the Tax Court] can re-examine an otherwise final decision when such decision was produced by [a] ‘fraud upon the court’ of the most egregious nature, and when such fraud goes to the very heart of the adjudicative process.” Deutsch v. C.I.R., 34 T.C.M. (CCH) 387, 388, 1975 WL 2715 (1975) (emphasis added). The narrow and limited definition of “fraud upon the court” set forth in Kenner “reflects the policy of putting an end to litigation,” id., and serves the “important legal and social interest” in preserving the finality of judgments. Toscano v. C.I.R., 441 F.2d 930, 934 (9th Cir.1971). Like this court in Kenner, all of the circuits that permit the vacating of an earlier Tax Court decision on the basis of fraud have articulated a very narrow definition of “fraud upon the court” and have underscored the heavy burden faced by a party who seeks to set aside a prior Tax Court decision. See Harbold, 51 F.3d at 622; Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989); Abatti, 859 F.2d at 118; Senate Realty Corp. v. C.I.R., 511 F.2d 929, 931 (2d Cir.1975); Stickler v. C.I.R., 464 F.2d 368, 370 (3d Cir.1972); see also Annotation, Power of Tax Court to Grant Leave to File Motion to Vacate Its Final Decision on Ground of Fraud Upon the Court, 24 A.L.R. Fed. 697 (1975) (1995 Supp.). One" }, { "docid": "9768028", "title": "", "text": "bring this claim before the court. Fed.R.Civ.P. 60(b). Although amici curiae do not predicate their claim of bad faith on the part of counsel for the Justice Department, or fraud upon the court on any specific factual allegations of misrepresentation, the charges they have leveled ought to be unequivocally dispelled. For that reason only, I undertake to discuss in greater measure than ought to be required the principles underlying the decree entered by this court. The decree in this case and the conduct of the parties in negotiating the settlement on which it is based have been subjected to an unusually wide and deeply penetrating inquiry in the course of widely publicized hearings before the Committee of the Judiciary of the United States Senate. The records of the hearings have been filed as exhibits and it is on that record only that amici curiae rely to support their contention that the decree is tainted by fraud. A. The Applicable Standard The court of appeals for this circuit has narrowly defined fraud on the court which warrants the setting aside of a judgment as: “ ‘that species of fraud which does or attempts to defile the court itself . so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.' ” Martina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798, 801 (2d Cir. 1960), quoting 7 J. W. Moore, Federal Practice, para. 60.33 at 512 (2d ed.). See Kupferman v. Consolidated Research & Mfg. Co., 459 F.2d 1072, 1078-1079 (2d Cir. 1972); Kenner v. Commissioner of Internal Revenue, 387 F.2d 689, 691 (7th Cir. 1968); Lockwood v. Bowles, 46 F.R.D. 625, 631 (D.D.C.1969). Generally speaking, only the most egregious misconduct, such as bribery of a judge or membei's of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v. Universal Oil Products, supra," }, { "docid": "20697993", "title": "", "text": "a holding that it could not be considered. We conclude that the tax court has power to inquire into the integrity of its own decision even when such decision has become final and immutable in all other respects as a result of exhaustion of direct review or expiration of the time allowed for seeking review. Id. at 691 (emphasis added). The Kenner court also emphasized that the burden of proof rests squarely with the party seeking to set aside the prior decision, and stated that this burden could not be met simply by making “a broad assertion that the tax court decision [was] tainted with fraud.” Id. Rather, “there is a heavy burden ... upon the one who seeks to impeach an order or decree of a court,” who must come forward with “specific facts which will pretty plainly impugn the official record.” Id. Defining the term “fraud upon the court,” this court in its Kenner decision stated that the alleged improper conduct must rise to the level of an “unconscionable plan or scheme ... designed to improperly influence the court in its decision” before it may be deemed a “fraud upon the court.” Id. (quotations, omitted) (emphasis added). The court stressed that not all deceptive or improper conduct rises to the level of a “fraud upon the court.” Rather, “ ‘[fjraud upon the court’ ... embrace[s] only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Id. (quoting 7 Moore’s Federal Practice, 2d ed., p. 512, § 60.23). Thus, the “import [of Kenner] ... is to suggest that [the Tax Court] can re-examine an otherwise final decision when such decision was produced by [a] ‘fraud upon the court’ of the most egregious nature, and when such fraud goes to the very heart of the adjudicative process.” Deutsch v. C.I.R., 34 T.C.M. (CCH) 387, 388, 1975 WL 2715 (1975) (emphasis added). The narrow" }, { "docid": "9697327", "title": "", "text": "Cir. 1964), we stated: Petitioner argues that such a result would be inequitable as to it. Such an argument cannot be considered by us, however, as we do not have the jurisdiction of a court of equity. Commissioner v. Gooch Co., 320 U.S. 418 (1943); Lorain Avenue Clinic, 31 T.C. 141 (1958). “The Internal Revenue Code, not general equitable principles, is the mainspring of [our] jurisdiction.” Commissioner v. Gooch Co., supra at 422. The proper place for a consideration of petitioner’s complaint is the halls of Congress, not here. It has been stated by the Courts and at least one commentator that fraud upon the Court should embrace only that species of fraud which does, or attempts to, defile the Court itself, or is a fraud perpetrated by officers of the Court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. See Kenner v. Commissioner, 387 F.2d 689 (7th Cir. 1968); Toscano v. Commissioner, 441 F.2d 930 (9th Cir. 1971); 7 J. Moore, Federal Practice, sec. 60.33, p. 512-513 (2d ed. 1948). We agree with petitioner that the conduct of Hacker, who had been retained for the purpose of filing a petition with this Court, was reprehensible. However, he never at any time filed such petition. At no time did he attempt to invoke this Court’s jurisdiction. In other words, at no time did he start this Court’s judicial machinery so that we would perform in the usual manner our impartial task of adjudicating this case. It follows, then, that no fraud could have been or was perpetrated upon this Court. We hold, therefore, that Hacker’s nonfeasance, i.e., his omission to do an act which he ought to do, did not constitute a fraud on this Court. To accord with our views expressed herein, respondent’s motion to dismiss for lack of jurisdiction will be granted and petitioner’s pending motion will be rendered moot. An appropriate order of dismissal will be entered. Since the primary motion herein under consideration is a preliminary jurisdictional motion, the Court has concluded" }, { "docid": "23191506", "title": "", "text": "or revise a decision may be filed more than 30 days after the decision has been entered, except by special leave.” Miss Zelasko’s motion was for “special leave” under this rule. The Tax Court denied leave. In so doing, that court indicated that it believed that, assuming the truth of Miss Zelasko’s allegations, she had not shown a fraud on the court, but merely a fraud on herself or on the Commissioner. If that view is correct, then the decision must be affirmed. We are of the opinion, however, that the allegations of the motion and of the supporting documents do show a fraud on the Tax Court. The distinction between “fraud” on the one hand and “fraud on the court” on the other is by no means clear, and most attempts to state it seem to us to be merely compilations of words that do not clarify. Mr. Moore has made a valiant attempt at definition in the portion of his treatise that deals with Rule 60(b), F.R.Civ.P., which uses the phrase “fraud upon the court.” He discusses the problem at length (7 Moore’s Federal Practice, 2d ed. 1970, § 60.33, pp. 504-13), and concludes as follows (p. 512-13): “ ‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjuding cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b) (3) or to the independent action.” Because there is here no charge of corruption of the court itself (cf. Root Refining Co. v. Universal Oil Products Co., 3 Cir., 1948, 169 F.2d 514), we do not find the foregoing very helpful. What is meant by “defile the court itself”? What is meant by “fraud perpetrated by officers Of the court”? Does this include attorneys? Does it include the case in which" }, { "docid": "17886079", "title": "", "text": "ground that it was procured by fraud upon the court. On March 18, 1974, after a hearing, the Tax Court denied the motion. This appeal ensued. I The narrow question before us is whether the Tax Court abused its discretion in denying Senate’s motion for special leave to vacate a decision which had become final under Internal Revenue Code of 1954 §§ 7481(a)(1), 7483. Rule 162 Rules of Practice and Procedure of the United States Tax Court, provides that a motion to vacate a decision more than 30 days after it was entered, must be by special leave of that court. The May 7, 1973 decision in issue here became final on August 7, 1973, so that the motion for special leave was necessary. Such a motion lies within the sound discretion of the Tax Court and the only ground of review is whether or not that Court abused its discretion in denying the motion. See Lentin v. CIR, 237 F.2d 5, 6 (7th Cir. 1956); Skenandoa Rayon Corp. v. CIR, 122 F.2d 268, 271 (2d Cir.), cert. denied, 314 U.S. 696, 62 S.Ct. 413, 86 L.Ed. 556 (1941). We find no abuse and affirm the order of the Tax Court. The fraud claimed here is that Rumpf, as an “officer of the court,” after being expressly directed by attorney Kossoy not to settle the claims herein, nevertheless executed an unauthorized stipulation terminating the suit brought by Senate. Rumpf as an attorney is an officer of the court and here was not authorized to settle the claim even though he was authorized to appear in the Tax Court. However the critical question is whether this is sufficient to constitute a fraud upon the court. Professor Moore’s definition is instructive; “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases. 7 J. Moore, Federal Practice H 60.33, at 515 (2d ed." }, { "docid": "16701394", "title": "", "text": "affd. without published opinion 538 F.2d 314 (2d Cir. 1976); fn. ref. omitted.]1 1 In the present case, a decision was not entered by the Court in 1979 because the Court concluded that it lacked jurisdiction. In relevant part, section 7459(c) and (d) provides: (c) Date of Decision. — A decision of the Tax Court (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Tax Court * * * if the Tax Court dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Tax Court, and the decision of the Tax Court shall be held to be rendered upon the date of such entry. (d) Effect of Decision Dismissing Petition. — If a petition for a redeter-mination of a deficiency has been filed by the taxpayer, a decision of the Tax Court dismissing the proceeding shall be considered as its decision that the deficiency is the amount determined by the Secretary. An order specifying such amount shall be entered in the records of the Tax Court unless the Tax Court cannot determine such amount from the record in the proceeding, or unless the dismissal is for lack of jurisdiction. Since the petitioner failed to file a petition duly executed by her or on her behalf, the case. was dismissed for lack of jurisdiction, and in accordance with the provisions of section 7459, the effect of the order of dismissal was the same as if the Court had rendered a decision on the date of such order. Generally, section 6213(a) prohibits the Commissioner from assessing any deficiency in income tax during the period in which a petition can be filed with the Tax Court, or if such petition is filed, the Commissioner cannot make his assessment until the decision of the Court becomes final. In other words, a final decision allows the Commissioner to assess and collect a deficiency in tax, and when a case" }, { "docid": "13191908", "title": "", "text": "Section is “Reports and decisions;”, its subsection (c) entitled “Date of decision” contains the language which the Commissioner asserts sets strict and confining limits to the general language “decisions of the Tax Court” contained in Section 7482(a). Section 7459(c) reads: “(e) Date of decision — A decision of the Tax Court (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Tax Court. If the Tax Court dismisses a proceeding for reasons other than lack of jurisdiction and is unable from the record to determine the amount of the deficiency determined by the Secretary or his delegate, or if the Tax Court dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Tax Court, and the decision of the Tax Court shall be held to be rendered upon the date of such entry.” His argument is that unless a decision of the Tax Court can be found to fit into the language of the above quoted section, it is not a “decision of the Tax Court;” that only where the Tax Court specifies an amount of deficiency or dismisses a petition for lack of jurisdiction or for other reasons, can its order be reviewed. Respondent’s brief to this court says that by such subsection, “Congress * * * saw fit to define in precise terms just what constitutes a reviewable Tax Court decision.” We disagree. If Congress intended to make such a limiting definition of the words, “decisions of the Tax Court” it could have done so in precise language. We are not persuaded that Congress left such an intent to be inferred from the language of a subsection of the statute which had for its only purpose the fixing of the date to be applied to certain types of decisions. The following decisions are relied upon to support Commissioner’s motion to dismiss Louisville’s petition for review. Michael v. Commissioner, 2 Cir, 1932, 56 F.2d" }, { "docid": "2519136", "title": "", "text": "analyzed by it in the light of its special familiarity with all of these matters, their interrelation and their implications. Accordingly, we leave any and all questions concerning the statute of limita tions open for appropriate consideration on remand. The decision of the Tax Court will be vacated and the cause remanded for further proceedings consistent with this opinion. . “§ 7459. Reports and decisions * * * * * “(c) Date of decision. — A decision of the Tax Court (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Tax Court. If the Tax Court dismisses a proceeding for reasons other than lack of jurisdiction and is unable from the record to determine the amount of the deficiency determined by the Secretary or his delegate, or if the Tax Court dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Tax Court, and the decision of the Tax Court shall be held to be rendered upon the date of such entry. “(d) Effect of decision dismissing petition. — If a petition for a redetermination of a deficiency has been filed by the taxpayer, a decision of the Tax Court dismissing the proceeding shall be considered as its decision that the deficiency is the amount determined by the Secretary of his delegate. * * * “(e) Effect of decision that tax is barred by limitation. — If the assessment or collection of any tax is barred by any statute of limitations, the decision of the Tax Court to that effect shall be considered as its decision that there is no deficiency in respect of such tax. * * ” . See Commissioner of Internal Revenue v. Smith Paper, Inc., 1 Cir., 1955, 222 F.2d 126, 129. Accord, Michael v. Commissioner, 2 Cir., 1932, 56 F.2d 825. . This court has so held. Colonial Amusement Co. of Philadelphia v. Commissioner, 3 Cir., 1949, 173 F.2d" }, { "docid": "9697326", "title": "", "text": "adherence thereto would be manifestly unconscionable; therefore, in the circumstances of this case, the Court should invoke equity and determine that it does have jurisdiction over the petition filed herein, (2) Hacker’s conduct constituted a fraud on the Court in that it prevented this Court from actually operating its judicial machinery. The Tax Court has only such jurisdiction as is conferred upon it by statute. It has no jurisdiction to exercise the broad common law concept of judicial power invested in courts of general jurisdiction by Article III of the Constitution. Burns, Stix Friedman & Co. v. Commissioner, 57 T.C. 392 (1971); secs. 7441 and 7442. Our jurisdiction to grant equitable relief is strictly limited; it exists only to the extent specifically enumerated by statute, and it does not include the power to decide equitable questions. Feistman v. Commissioner, 587 F.2d 941 (9th Cir. 1978). While we are sympathetic to petitioner’s plight, we cannot provide it with any equitable relief. In Hays Corp. v. Commissioner, 40 T.C. 436, 442-443 (1963), affd. 331 F.2d 422 (7th Cir. 1964), we stated: Petitioner argues that such a result would be inequitable as to it. Such an argument cannot be considered by us, however, as we do not have the jurisdiction of a court of equity. Commissioner v. Gooch Co., 320 U.S. 418 (1943); Lorain Avenue Clinic, 31 T.C. 141 (1958). “The Internal Revenue Code, not general equitable principles, is the mainspring of [our] jurisdiction.” Commissioner v. Gooch Co., supra at 422. The proper place for a consideration of petitioner’s complaint is the halls of Congress, not here. It has been stated by the Courts and at least one commentator that fraud upon the Court should embrace only that species of fraud which does, or attempts to, defile the Court itself, or is a fraud perpetrated by officers of the Court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. See Kenner v. Commissioner, 387 F.2d 689 (7th Cir. 1968); Toscano v. Commissioner, 441 F.2d 930 (9th Cir. 1971); 7 J." }, { "docid": "967608", "title": "", "text": "as the tax court found that the Government had failed to prove by clear and convincing evidence that the corporate deductions claimed therein were the result of an intent to defraud. This Court’s review is limited to the narrow issue of determining wheth er the tax court’s denial of special leave was an abuse of the discretion vested in the tax court. See Toscano v. C. I. R., 441 F.2d 930 (9th Cir. 1971), Byrne dissenting, and cases cited. As the tax court noted in its memorandum and order of April 21, 1971, ordinarily “a decision of this Court becomes final 3 months after it is rendered, if no appeal has been taken within that period; and we are then powerless to set aside such a decision. Sections 7481, 7843 (sic). Internal Revenue Code of 1954; Lasky v. Commissioner [of Internal Revenue, 9 Cir.,] 235 F.2d 97, aff’d per curiam 352 U.S. 1027 [77 S.Ct. 594, 1 L.Ed.2d 598.” See also Schaffner v. Bingler, 268 F.2d 76 (3d Cir. 1959); White’s Will v. Commissioner of Internal Revenue, 142 F.2d 746, 748 (3d Cir. 1944); United States v. Howard, 296 F.Supp. 264 (D. Or.1968). Although the authorities are not in agreement, an exception has been constructed to this jurisdictional bar allowing the tax court to reexamine an otherwise final decision in the event it is shown that such decision was produced by fraud upon the court. Kenner v. Commissioner of Internal Revenue, 387 F.2d 689 (7th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); Toscano v. C. I. R., supra. Contra: Jefferson Loan Co. v. Commissioner of Internal Revenue, 249 F.2d 364, 367 (8th Cir. 1957). In Kenner, the court defined fraud upon the court as that “species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging eases that are presented for adjudication.” The petitioner alleged that the agents of the I.R.S. acted improperly or showed" }, { "docid": "20762341", "title": "", "text": "from the operation of massage parlors and related activities were not reported to their return preparer for the years 1974, 1975, and 1976; and (d) the failure to report these amounts resulted in a substantial understatement of the joint tax liability of Nick and Madeline DeLucia for the years 1974, 1975, and 1976. Rule 75(d) provides that objections to a notice of deposition are to be served within 15 days after service of the notice of deposition. In view of (1) our disposition of respondent’s motion to compel deposition, and (2) the fact that no objection has been raised in this proceeding relating to the appropriateness of scheduling a deposition only 14 days after service of the notice of deposition, we leave for another day any ruling as to the possible effects of this shortened time period. We assume petitioners are referring to Rule 75, since Rule 74 clearly authorizes the taking of a party’s deposition if that party so consents. Sec. 7459(c) provides, in relevant part, as follows: SEC. 7459. REPORTS AND DECISIONS. (c) Date of Decision. — A decision of the Tax Court (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Tax Court * * * The references to sec. 7459(c), and the section references that appear hereinafter, are to sections of the Internal Revenue Code of 1954 as in effect on the date this opinion is filed. See note 2 supra. Sec. 1558 of H.R. 3838, the Tax Reform Act of 1986, Pub. -L. 99-514, 100 Stat. 2757, overruling Shapiro v. Commissioner, 632 F.2d 170 (2d Cir. 1980), applies to orders entered after the date of enactment of this act. Even then, the new statutory provision would give the Courts of Appeals only a limited discretionary authority to entertain interlocutory appeals. See also Howe v. Commissioner, T.C. Memo. 1985-213." }, { "docid": "967609", "title": "", "text": "Internal Revenue, 142 F.2d 746, 748 (3d Cir. 1944); United States v. Howard, 296 F.Supp. 264 (D. Or.1968). Although the authorities are not in agreement, an exception has been constructed to this jurisdictional bar allowing the tax court to reexamine an otherwise final decision in the event it is shown that such decision was produced by fraud upon the court. Kenner v. Commissioner of Internal Revenue, 387 F.2d 689 (7th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); Toscano v. C. I. R., supra. Contra: Jefferson Loan Co. v. Commissioner of Internal Revenue, 249 F.2d 364, 367 (8th Cir. 1957). In Kenner, the court defined fraud upon the court as that “species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging eases that are presented for adjudication.” The petitioner alleged that the agents of the I.R.S. acted improperly or showed animus toward him. The court concluded that “[E]ven assuming, however, that the agents were hostile or had an attitude of unfairness toward Dr. Kenner, the petition leaves us completely in the dark as to how the agents fraudulently induced the court to decide against Dr. Kenner. We suspect that Dr. Kenner may have proceeded upon the unfounded assumption that the acts of the agents of the internal revenue service are chargeable to the tax court.” 387 F.2d at 692. In Toscano, the phrase was said to apply to those “acts of the adverse party ‘ * * * as prevented the losing party from fully and fairly presenting his case or defense’.” The record in this case, as in Kenner, sheds no light on the allegation of fraud. The stipulations were entered into voluntarily. The “fraud,” if any, practiced by the attorneys was nothing more than “some puffing of the supposed strength of the Government’s position in the settlement negotiations.” Appellants cannot escape the intimation of their own conduct that indeed there may have been" }, { "docid": "7600884", "title": "", "text": "the term “fraud on the court” remains a “nebulous concept,” Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1085 (Fed.Cir.1993), that phrase “should be read narrowly, in the interest of preserving the finality of judgments.” Toscano v. Commissioner, 441 F.2d 930, 934 (9th Cir.1971). Simply put, not all fraud is fraud on the court. To constitute fraud on the court, the alleged misconduct must “harm[ ] the integrity of the judicial process.” Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir.1989). To determine whether there has been fraud on the court, this circuit and others apply Professor Moore’s definition: “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Gumport v. China International Trust and Inv. Corp. (In re Intermagnetics America, Inc.), 926 F.2d 912, 916 (9th Cir.1991) (quoting 7 James Wm. Moore et al., Moore’s Federal Practice ¶ 60.33, at 515 (2d ed. 1978)). Generally, non-disclosure by itself does not constitute fraud on the court. See England v. Doyle, 281 F.2d 304, 310 (9th Cir.1960) (failure to produce evidence, without more, does not constitute fraud on the court). Similarly, perjury by a party or witness, by itself, is not normally fraud on the court. See, e.g., Gleason v. Jandrucko, 860 F.2d 556, 559-60 (2d Cir.1988); 12 James Wm. Moore & Joseph T. McLaughlin, Moore’s Federal Practice § 60.21[4][c], at 60-56-57 (3d ed.1998). The Gleason court reasoned that since perjury is an evil that could and should be exposed at trial, it should not qualify as fraud upon the court. See Gleason, 860 F.2d at 560. The reason why the courts in these cases did not treat perjury or non-disclosure alone as fraud on the court was that the plaintiff had the opportunity to challenge the alleged perjured testimony or non-disclosure because the issue was already before the court. For example, in" }, { "docid": "16701393", "title": "", "text": "carved out by Toscano and Kenner. In those two cases, the Courts of Appeals at most indicated that the same exception which applies to the finality of United States District Court decisions (see rule 60(b) of the Federal Rules of Civil Procedure) governs our decisions, namely, that \"fraud on the court” must be \"only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” See Kenner v. Commissioner, 387 F.2d at 689; Toscano v. Commissioner, 441 F.2d at 933, quoting 7 Moore, Federal Practice, sec. 60.33 (2d ed.). This same narrowly defined exception has been reiterated by at least one Circuit Court of Appeals in respect of decisions of this Court entered subsequent to the acquisition of article I status. Senate Realty Corp. v. Commissioner, 511 F.2d 929 (2d Cir. 1975). [Taub v. Commissioner, 64 T.C. 741, 750-751 (1975), affd. without published opinion 538 F.2d 314 (2d Cir. 1976); fn. ref. omitted.]1 1 In the present case, a decision was not entered by the Court in 1979 because the Court concluded that it lacked jurisdiction. In relevant part, section 7459(c) and (d) provides: (c) Date of Decision. — A decision of the Tax Court (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Tax Court * * * if the Tax Court dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Tax Court, and the decision of the Tax Court shall be held to be rendered upon the date of such entry. (d) Effect of Decision Dismissing Petition. — If a petition for a redeter-mination of a deficiency has been filed by the taxpayer, a decision of the Tax Court dismissing the proceeding shall be considered as" }, { "docid": "10400097", "title": "", "text": "subject cases, but these petitioners agreed to follow the opinion of this Court in the lead case, not a final decision in that case. The petitioners appear to suggest that we should construe their agreement as one to extend the appeal period, but such an agreement would be unenforceable. See Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Feistman v. Commissioner, 587 F.2d 941 (9th Cir. 1978), dismissing appeal from 63 T.C. 129 (1974); Fed. R. App. P. 26(b). These observations lead us to conclude that the petitioners made a conscious decision not to appeal the decisions in their cases and that, as a result, the decisions in their cases became final prior to their filing the motion at hand. The petitioners also argue that a failure to enforce the interpretation of the agreement they promote results in a fraud on the court and, therefore, we have the power and the duty to vacate the decisions entered in their cases. Fraud on the court is “only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjud[g]ing cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court.” Toscano v. Commissioner, 441 F.2d at 933, quoting 7 J. Moore, Federal Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the petitioners must show that an intentional plan of deception designed to improperly influence the Court in its decision has had such an effect on the Court. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 245-246 (1944); Toscano v. Commissioner, 441 F.2d at 935; Keys v. Dunbar, 405 F.2d 955, 957-958 (9th Cir. 1969), citing Atchison, Topeka & Santa Fe Railway Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Kraasch v. Commissioner, 70 T.C. 623, 626 (1978); see Kenner v. Commissioner, 387 F.2d at 691-692. When the Court entered the decisions in the petitioners’ cases, it did so in" } ]

[ { "docid": "1695105", "title": "", "text": "denied the motion of the Jacobs Group and Mr. Kalmanovitz for a preliminary injunction against Heileman’s offer. As a result of a settlement agreement among Heileman, Pabst and the Jacobs Group announced on November 26, 1982, the JMSL and Heileman tender offers were withdrawn. In connection with that settlement, HBC commenced a new tender offer for Pabst shares (the “HBC Offer”) and the Jacobs Group agreed to tender its Pabst shares to HBC. As subsequently amended, HBC offered to purchase up to 5.6 million Pabst shares. In response to the HBC Offer, Mr. Kalmanovitz made a competing tender offer to purchase 4,150,000 Pabst shares. Mr. Kalmanovitz also brought another action in this Court against Heileman and Pabst. Mr. Kalmanovitz’s complaint in that suit sets forth a variety of claims that are virtually identical to those asserted by Mr. Kalmanovitz and the Jacobs Group against Heileman’s earlier tender offer for Pabst. In addition, Mr. Kalmanovitz alleged that Heileman, Pabst and the Jacobs Group had conspired to eliminate bidding for Pabst shares in violation of Section 1 of the Sherman Act. On December 22,1982, this Court denied Mr. Kalmanovitz’s motion for a preliminary injunction with respect to all of his claims. On December 23, 1982, HBC purchased 5.6 million Pabst shares. Mr. Kalmanovitz terminated his offer on December 28, 1982. Although Mr. Kalmanovitz’s motion for a preliminary injunction in C.A. No. 82-797 was denied, his action in this Court is still pending. On January 14, 1983, Mr. Kalmanovitz filed a substantially identical action in the United States District Court for the Northern District of California (“California Court”). On January 17, 1983, a written comment opposing the proposed Final Judgment was submitted to the Department of Justice on Mr. Kalmanovitz’s behalf. Two days later, Mr. Kalmanovitz and two of his brewing companies filed the present motion to intervene in this case. The transactions contemplated under the HBC Tender Offer have since been fully completed and carried out. On March 18, 1983, the shareholders of Pabst and Olympia, respectively, approved the Pabst merger and the Olympia merger at special meetings called to consider those" } ]

[ { "docid": "1684793", "title": "", "text": "in. accordance with this Opinion. . Kalmanovitz v. G. Heileman Brewing Co., Inc., C.A. No. 82-797 (D.Del. filed Dec. 10, 1982). . Kalmanovitz v. G. Heileman Brewing Co., Inc., C-83-0196-MHP (N.D.Cal. filed Jan. 14, 1983). . Kalmanovitz v. Jacobs, Case No. 111041 (Marin County Super.Ct. filed Jan. 17, 1983). . In its original motion, the Jacobs Group moved for summary judgment on plaintiffs' claim of tortious interference with contractual relations against the Jacobs Group (D.I. 116), on the ground that \"a party to a contract cannot as a matter of law sue the other party to that contract for tortious interference/’ (D.I. 114 at 29.) See Donohoe v. Watts, 546 F.Supp. 753, 757 (D.D.C.1982); Professional Investors Life Ins. Co. v. Roussel, 528 F.Supp. 391, 403 (D.Kan.1981); W. Prosser, Handbook of the Law of Torts 934 (9th ed. 1971). The plaintiffs’ brief in opposition to this motion (D.I. 127) did not address this part of the Jacobs Group’s motion. Plaintiffs conceded the Jacobs Group to be correct on this point at oral argument (D.I. 136 at 53-54), and the Court will therefore dismiss this claim. . See United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del. 1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del.1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.) aff’d, 707 F.2d 1392 & 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982). . The members of the Jacobs Group owned shares in Pabst as follows: Irwin Jacobs-880,116 shares; Dennis Mathisen-86,763 shares; Gerald Schwalbach-86,663 shares; Daniel Lindsay-86,-763 shares. (D.I. 121, Ex. 1.) . The complaint also alleges that Kalmanovitz was offered \"participation in the below-market purchase of Pabst’s Milwaukee office building.\" (D.I. 41 at 6.) . The offer was actually made by 21-115, Inc., a wholly-owned subsidiary of S & P Company, which in turn is wholly-owned by Kalmanovitz. . In Tose, the activity in question involved control of a partnership. The Third Circuit, however, stated in its opinion that the antitrust laws do not apply to \"losses sustained in" }, { "docid": "13027696", "title": "", "text": "Cir.1980). Plaintiffs' theory of injury under Count X does not meet the threshold standing requirements, therefore, Count X will be dismissed. Accordingly, the Court finding that Counts I through X are without merit, those counts will be dismissed and summary judgment entered thereon in favor of defendants and against plaintiffs. IV. PLAINTIFFS’ RULE 54(b) MOTION TO CERTIFY This consolidated litigation as above captioned originally consisted of three separate law suits. The first was the twelve count complaint filed in this Court as C.A. No. 82-797. The second was the two count complaint brought by plaintiffs in the United States District Court for the Northern District of California (the “California District Court”). (D.I. 41.) The third was brought by the plaintiffs in the Superior Court of California for the County of Marin (the “California State Court action”). Defendants thereafter removed the latter action to the California District Court, consolidated with the second action, and then upon defendants’ motion transferred to this Court pursuant to 28 U.S.C. § 1404(a). (D.I. 70.) Upon the transfer of California actions here, those actions were consolidated with C.A. No. 82-797. In Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. 922 (D.Del.1983), this Court dismissed Counts XI and XII of the complaint in C.A. No. 82-797 and both Counts of the California District Court complaint against all of the named defendants. (D.I. 139.) In accordance with this opinion, the Court will enter an order dismissing all of the remaining counts (Count I through X) of the complaint in C.A. No. 82-797 against all of the named defendants. These dismissals result in leaving only one claim outstanding and unresolved. The unresolved claim is found in the complaint originally filed by the plaintiffs in the California State Court action against only defendants Irwin Jacobs, Dennis Mathisen, Gerald A. Schwalbach and Daniel T. Lindsay (the “Jacobs Group”) for breach of contract. (D.I. 71, Ex. A.) In that complaint plaintiffs allege that the individuals of the Jacobs Group by a letter dated November 18, 1982, unconditionally bound themselves to pay plaintiffs fifty percent of all proceeds should the Jacobs Group" }, { "docid": "1684794", "title": "", "text": "53-54), and the Court will therefore dismiss this claim. . See United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del. 1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del.1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.) aff’d, 707 F.2d 1392 & 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982). . The members of the Jacobs Group owned shares in Pabst as follows: Irwin Jacobs-880,116 shares; Dennis Mathisen-86,763 shares; Gerald Schwalbach-86,663 shares; Daniel Lindsay-86,-763 shares. (D.I. 121, Ex. 1.) . The complaint also alleges that Kalmanovitz was offered \"participation in the below-market purchase of Pabst’s Milwaukee office building.\" (D.I. 41 at 6.) . The offer was actually made by 21-115, Inc., a wholly-owned subsidiary of S & P Company, which in turn is wholly-owned by Kalmanovitz. . In Tose, the activity in question involved control of a partnership. The Third Circuit, however, stated in its opinion that the antitrust laws do not apply to \"losses sustained in an intracorporate or intrapartnership power struggle.” 648 F.2d at 892 (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)." }, { "docid": "13027699", "title": "", "text": "beneficial owner of twenty shares of common stock of Pabst. (D.I. 1 at 1.) . This Court in Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. 922 (D.Del.1983), dismissed Counts XI and XII of Kalmanovitz’s original, twelve-count complaint in C.A. No. 82-797. . The Court has six prior published opinions concerning this litigation: Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del. 1983); United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del.1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del. 1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.), aff'd, 707 F.2d 1392 & 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del. 1982). . The tender offer was to be made by JMSL Acquiring Corp. (“JMSL”), a Delaware corporation wholly owned by PST Acquiring Corp. (\"PST”), another Delaware corporation which was to be owned 50% by the Jacobs Group and 50% by Kalmanovitz. (D.I. 121, Ex. 1 at 3.) As part of the October 26 contract, Kalmanovitz would become a 50% shareholder in PST for $1,000. At the time the parties entered into the October 26 contract, the price for shares of stock in Pabst trading on the New York Stock Exchange was approximately $20 per share. . Because the Exchange Act does not expressly provide a private remedy for alleged violations of Section 14 or 13, any private right of action arising from violations of those sections must be implied. In Cort v. Ash, the Supreme Court set forth four factors relevant in determining whether a private remedy is implicit in a federal statute not explicitly providing one. Those four factors are (1) whether plaintiff is one of the class for whose special benefit the statute was enacted, (2) whether the legislature intended to create a private remedy, (3) whether a private right of action would be consistent with the underlying purposes of the legislative scheme, and (4) whether the cause of action is one traditionally relegated to state law. Cort v. Ash, 422 U.S. at 78, 95 S.Ct." }, { "docid": "14108454", "title": "", "text": "OPINION LATCHUM, Senior District Judge. This action was brought by plaintiffs Paul Kalmanovitz (“Kalmanovitz”) and S & P Company, a California corporation (collectively “plaintiffs”), based upon an alleged breach of contract entered into on October 26, 1982, as supplemented by the letter agreement of November 18, 1982, between Kalmanovitz and Messrs. Irwin L. Jacobs (“Jacobs”), Dennis M. Mathisen, Gerald A. Schwalbach and Daniel T. Lindsay (collectively “the Jacobs Group”). Kalmanovitz charges that the Jacobs Group refused to pay him: (1) the contract price of $3,785,812.60 on the November 18, 1982 letter agreement as fifty percent of the price difference between $24 per share and $32 per share on 83 percent of 1,140,305 shares of Pabst tendered; and (2) $3,750,-000 as fifty percent of the $7,500,000 received by the Jacobs Group pursuant to the November 26, 1982 settlement between the Jacobs Group, Heileman Brewing Co. (“Heileman”) and Pabst Brewing Co. (“Pabst”). (Docket Item [“D.I.”] 41.) Presently before this Court are two motions: (1) the Jacobs Group motion to disqualify Joseph L. Alioto, Esq., and Alioto & Alioto as counsel for plaintiffs (D.I. 189); and (2) plaintiffs’ motion for jury trial. (D.I. 186.) I. JACOBS GROUP MOTION TO DISQUALIFY COUNSEL FOR PLAINTIFFS Pursuant to Disciplinary Rules 5-102(A), 5-102(B) and 5-105(D) of the American Bar Association Code of Professional Responsibility, the defendants have moved for an order disqualifying Joseph L. Alioto, Esq., and his law firm from representing the plaintiffs. The defendants contend that the testimony of Joseph L. Alioto, Esq., is crucial to the following significant events: (1) the negotiations preceding the November 18, 1982 letter agreement between Irwin L. Jacobs and Kalmanovitz; (2) the drafting of the November 18, 1982 agreement by Mr. Alióte; (3) the events leading up to the November 26, 1982 agreement between the Jacobs Group, Heileman and Pabst. Because it appears that Joseph L. Alioto, Esq., “ought to be called as a witness” for the plaintiffs, defendants argue that Joseph L. Alioto and his firm must be disqualified. (D.I. 190.) Plaintiffs respond by arguing that there is no basis for disqualifying either Joseph L. Alioto, Esq., or" }, { "docid": "1684767", "title": "", "text": "wholly-owned subsidiary of Heileman incorporated in Delaware, Pabst, and William Smith, President and Director of Pabst. (Docket Item [“D.I.”] 1.) Subsequently, Kalmanovitz, individually and as a Pabst shareholder, filed a second suit in the United States District Court for the Northern District of California (the “California federal court”) alleging violations of the federal antitrust laws and the California tortious interference with contract law against the same parties named in the original Delaware action and also against additional defendants, Irwin L. Jacobs, Dennis Mathisen, Gerald A. Schwalbach, and Daniel I. Lindsay (“the Jacobs Group”), the latter of whom are citizens of Minnesota. (D.I. 41.) Almost immediately thereafter, Kalmanovitz and S & P Co., brought a third action in the California state court against the Jacobs Group alleging breach of contract. (D.I. 71, Ex. A.) This latter case was then removed to the California federal court. (D.I. 71.) On April 26, 1983, Judge Patel of the California federal court ordered the two California cases to be consolidated and transferred here. (D.I. 70.) Consequently, this Court has before it consolidated in one piece of litigation the two transferred California cases plus the original Delaware action. Pending before the Court are three motions. First, defendants Heileman, Cleary, HBC, Pabst, and Smith have moved: (a) to dismiss or, in the alternative, to grant summary judgment on plaintiffs’ antitrust claims; and (b) to grant summary judgment on Kalmanovitz’s claim of tortious interference with contract or prospective advantage. (D.I. 119.) The Jacobs Group also has moved to dismiss plaintiffs’ antitrust claims. (D.I. 116.) Kalmanovitz and S & P seek a partial summary judgment on the issue of liability on its breach of contract claim against the Jacobs Group. (D.I. 126.) FACTS This Court in prior opinions has already recited extensively the various facts and maneuvers relating to the attempts to gain control of Pabst, and will therefore limit discussion of the facts to those which ar,e pertinent to the pending motions. The relevant facts begin on October 26, 1982, when Paul Kalmanovitz and the Jacobs Group entered into a written Memorandum of Terms (D.I. 121, Ex. 1)," }, { "docid": "1684766", "title": "", "text": "OPINION LATCHUM, Chief Judge. One year ago this Court was faced with a swirl of litigation arising out of an intense fight for control of Pabst Brewing Company (“Pabst”), a Delaware corporation with its principal place of business in Milwaukee, Wisconsin'. Now that the fight for control has been resolved, the Court is again faced with litigation which contends that the activity of some of the participants in the Pabst Beer struggle violated the federal securities and antitrust laws as well as certain state tort and contract laws. This litigation originally consisted of three separate lawsuits. Initially, the plaintiffs, Paul Kalmanovitz, a citizen of California and shareholder of Pabst, and S & P Co., a California corporation wholly owned by Kalmanovitz, brought suit alleging violations of the federal securities and antitrust laws and the Delaware corporate law in this Court (“Delaware action”) against G. Heileman Brewing Company, Inc. (“Heileman”), a Wisconsin corporation with its principal place of business in La Crosse, Wisconsin, Russell G. Cleary, Chief Executive Officer of Heileman, HBC Acquisition, Inc. (“HBC”), a wholly-owned subsidiary of Heileman incorporated in Delaware, Pabst, and William Smith, President and Director of Pabst. (Docket Item [“D.I.”] 1.) Subsequently, Kalmanovitz, individually and as a Pabst shareholder, filed a second suit in the United States District Court for the Northern District of California (the “California federal court”) alleging violations of the federal antitrust laws and the California tortious interference with contract law against the same parties named in the original Delaware action and also against additional defendants, Irwin L. Jacobs, Dennis Mathisen, Gerald A. Schwalbach, and Daniel I. Lindsay (“the Jacobs Group”), the latter of whom are citizens of Minnesota. (D.I. 41.) Almost immediately thereafter, Kalmanovitz and S & P Co., brought a third action in the California state court against the Jacobs Group alleging breach of contract. (D.I. 71, Ex. A.) This latter case was then removed to the California federal court. (D.I. 71.) On April 26, 1983, Judge Patel of the California federal court ordered the two California cases to be consolidated and transferred here. (D.I. 70.) Consequently, this Court has before" }, { "docid": "4228746", "title": "", "text": "pool. Negotiations between the Jacobs Group and Heileman ensued, and on November 26, 1982, they signed an agreement which provided that (1) HBC would make a new tender offer for 5.6 million Pabst shares at $29 per share; (2) the Jacobs Group would tender its 1.4 million shares under the new offer; (3) the parties would dismiss all outstanding non-derivative litigation; and (4) Pabst and Heileman would reimburse the Jacobs Group $7.5 million for its expenses. Later that day, Jacobs informed Kalmanovitz of the new deal with Heileman and offered to pay plaintiff $5 million if he agreed to withdraw from the bidding. The offer was rejected. On December 2, 1982, HBC made its $29 tender offer, and JMSL withdrew its offer the following day. Not conceding defeat, Kalmanovitz then made a tender offer for 4.15 million shares at $32 per share through 21-115, Inc., a corporation wholly owned by plaintiff. Four days later, on December 10, 1982, Kalmanovitz instituted the present action in the district court in Delaware, requesting a preliminary injunction against HBC. On December 20, 1982, the district court denied the preliminary injunction, and on December 22,1982 — the withdrawal date for the HBC offer — Kalmanovitz increased his tender offer to $40 per share. On December 23, 1982, however, Heileman accepted for payment 5.6 million Pabst shares, thus ending the contest for control of the brewing company. To date plaintiff has not received any of the proceeds from the Jacobs Group’s tender of its Pabst shares to HBC. The procedural history of this case is somewhat complex inasmuch as the present appeal stems from the consolidation of three separate cases and has spawned no less than seven district court opinions. Initially, Kalmanovitz, as a disappointed tender offeror and as a shareholder of Pabst, and S & P Co., a California corporation wholly owned by Kalmanovitz, brought suit in the district court in Delaware. The complaint alleged violations of federal securities and antitrust laws and Delaware corporate law by G. Heileman Brewing Company, Russell G. Cleary, HBC Acquisition, Inc., Pabst, and William F. Smith, Jr. Subsequently, Kalmanovitz," }, { "docid": "13027697", "title": "", "text": "here, those actions were consolidated with C.A. No. 82-797. In Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. 922 (D.Del.1983), this Court dismissed Counts XI and XII of the complaint in C.A. No. 82-797 and both Counts of the California District Court complaint against all of the named defendants. (D.I. 139.) In accordance with this opinion, the Court will enter an order dismissing all of the remaining counts (Count I through X) of the complaint in C.A. No. 82-797 against all of the named defendants. These dismissals result in leaving only one claim outstanding and unresolved. The unresolved claim is found in the complaint originally filed by the plaintiffs in the California State Court action against only defendants Irwin Jacobs, Dennis Mathisen, Gerald A. Schwalbach and Daniel T. Lindsay (the “Jacobs Group”) for breach of contract. (D.I. 71, Ex. A.) In that complaint plaintiffs allege that the individuals of the Jacobs Group by a letter dated November 18, 1982, unconditionally bound themselves to pay plaintiffs fifty percent of all proceeds should the Jacobs Group sell its Pabst shares to others for more than $24 per share. Since plaintiffs’ breach of contract claim against the Jacobs Group is the only one which remains unresolved in this consolidated litigation, the Court finds no just reason exists for delay in entering a final judgment on all claims which were dismissed on November 21, 1983, or by the order to be entered today. This is so because the major claims involving federal securities violations, antitrust violations and tortious interference with contract claims have already been timely decided. The sole remaining breach of contract claim is subsidiary and unrelated to those issues and it involves fewer than all the multiple parties to this suit. It would be unduly harsh and wholly unrealistic to delay an appeal on the major unrelated issues until after trial of the subsidiary breach of contract claim. Accordingly, the Court will enter a Rule 54(b) certification on the claims already decided. An order will be entered in accordance with this Opinion. . Kalmanovitz is a citizen of California and the" }, { "docid": "4228742", "title": "", "text": "OPINION OF THE COURT ADAMS, Circuit Judge. This appeal, certified to us by the district court, arises in the aftermath of a bitter fight to gain control of Pabst Brewing Company. Plaintiff, a disappointed tender offeror, has sued his former partner, the successful acquiring company, and the target company, alleging violations of the federal antitrust and securities laws; in addition, plaintiff raised a variety of state law claims. Except for a breach of contract claim, the district court either dismissed or granted summary judgment to the defendants on all federal and state law causes of action. We will affirm the district court’s judgment and remand the case for further proceedings on the breach of contract claim. I. On October 26, 1982, Paul Kalmanovitz and Irwin L. Jacobs, along with three of Jacobs’ associates (the Jacobs Group), signed a Memorandum of Terms. According to this memorandum, Kalmanovitz and the Jacobs Group agreed to make a tender offer for three million shares of Pabst Brewing Company at $24 per share through JMSL Acquiring Corporation. The Jacobs Group already owned more than 1.14 million shares of Pabst; acquisition of the additional three million shares would have given the parties a majority of the outstanding Pabst shares. As part of the agreement Kalmanovitz and the Jacobs Group each were to become 50 percent shareholders in PST Acquiring Corporation, which wholly owned JMSL. On the day after JMSL accepted the three million shares on its tender offer, the Jacobs Group was to exchange its 1.14 million Pabst shares for additional shares of PST. In addition, Kalmanovitz was to contribute $26.4 million to PST in exchange for additional shares of the company. The agreement and the material accompanying the tender offer contemplated a subsequent merger of Pabst and JMSL. On October 27, 1982, JMSL made public the terms of its tender offer. The management of Pabst opposed the offer. Thereafter, William F. Smith, Jr., Pabst’s president, instituted a series of meetings with Russell G. Cleary, chief executive officer of Heileman Brewing Co., in search of a “white knight” — i.e., another entity willing to make an" }, { "docid": "4228748", "title": "", "text": "individually and as a Pabst shareholder, filed suit in the district court in California, alleging similar federal claims and an additional California state law claim of tortious interference with contractual relations against the same parties and also against the members of the Jacobs Group. Almost immediately thereafter, plaintiff instituted a third action — based on breach of contract — in California state court against the Jacobs Group. After the latter ease was removed to federal court in California, the two California federal cases were consolidated, transferred to Delaware, and then consolidated with the initial case. In November of 1983, the district court dismissed plaintiff’s claims based on §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1982), and his tortious interference with contract claim under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del.1983). In September of 1984, the district court granted partial summary judgment to defendants with regard to the federal securities and Delaware state law claims. 595 F.Supp. 1385 (D.Del.1984). All that remains is the breach of contract claim against the Jacobs Group. Finding no just reason to delay the appeal of the claims dismissed, the district court certified its rulings under Fed.R.Civ.P. 54(b) as final for purposes of appeal. This Court accepted appellate jurisdiction under 28 U.S.C. § 1291 (1982). II. Kalmanovitz alleges that defendants conspired unreasonably to restrain trade in Pabst stock in violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (1982). In particular, plaintiff contends that the November 26, 1982 agreement among the various defendants was an illegal scheme to eliminate competitive bidding for and to fix the price of Pabst stock at $29 per share. Defendants allegedly achieved their illicit goal by paying the Jacobs Group $7.5 million to scuttle JMSL’s $35 per share bid, breach its contract with Kalmanovitz, and tender its shares in response to HBC’s lower offer. The district court dismissed these allegations for failure to state a claim upon which relief may be granted. Plaintiffs are correct" }, { "docid": "13025821", "title": "", "text": "by the brokers was “minor”; that the brokers were not present when the fraud occurred; that they were not involved in making any misrepresentations; and that the intention behind the financing was not to accomplish a fraud, but rather the independent goal of obtaining a commission. Landy, 485 F.2d at 163. The court found that “[w]e have no allegation in this case that the brokers proposed to bring about the publication of the false financials and the consequent fraud upon the stock purchasers.” Id. at 164. Similarly, in this case, Drexel’s alleged role in arranging the reimbursement financing is insufficient to withstand Drexel’s motion to dismiss. Drexel may well have benefit-ted from the financing (allegedly it generated a $3 million fee), but nothing in the complaint suggests that Drexel in any way intended to participate in false or misleading filing. Thus, Posner’s and Boesky’s motions to dismiss Count II will be denied, while Drex-el’s motion to dismiss the 10b-5 aiding or abetting count will be granted because neither the second nor the third element of such a claim has been adequately alleged against Drexel. D. The 13(d) Count Against Posner and Boesky. In Count III, plaintiffs seek to recover money damages against Posner and Boesky, under § 13(d) of the Exchange Act, for filing 13D’s that failed to disclose the existence of the alleged secret agreement. Both Posner and Boesky move to dismiss for failure to state a claim, arguing that no private right of action for money damages exists under § 13(d). For the reasons set forth below, both motions will be granted. This Court has on two occasions addressed issues close to the one before it now, but the precise question of whether a private cause of action for money damages exists under § 13(d) has not yet been determined in this district. In Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982), the Court concluded that an implied cause of action exists under § 13(d) for injunctive relief. Two years later, in Kalmanovitz v. Heileman Brewing Co., 595 F.Supp. 1385 (D.Del.1984), aff'd, 769 F.2d 152 (3rd Cir.1985)," }, { "docid": "18878150", "title": "", "text": "MEMORANDUM OPINION LATCHUM, Chief Judge. Plaintiffs, Irwin L. Jacobs, Dennis M. Mathisen, Gerald A. Schwalbach, Daniel L. Lindsay, and Paul Kalmanovitz (collectively referred to as the “Jacobs Group”), individually and as shareholders of Pabst Brewing Company (“Pabst”), brought this action on November 15, 1982 pursuant to 15 U.S.C. §§ 78aa, 26, 28 U.S.C. §§ 1331, 1337 and 2201, and the principles of ancillary and pendent jurisdiction seeking injunctive relief against G. Heileman Brewing Company, Inc. (“Heileman”), HBC Acquisition Inc. (“HBC”), Pabst Brewing Company (“Pabst”)', and Olympia Brewing Company (“Olympia”), and the Board of Directors of each of these corporations, from continuing HBC’s partial tender offer of Pabst common stock (the “HBC tender offer”). The Jacobs Group, in its complaint, has alleged twelve causes of action. The first five causes of action claim that the defendants have violated various provisions of the Securities Exchange Act of 1934 (“Exchange Act”) including Sections 10(b), 13(e) and 14(d) & (e), 15 U.S.C. §§ 78j(b), 78m(e), and 78n(d) & (e) (1976). The other causes of action allege that the Pabst directors have breached the fiduciary duty they owe to the Pabst shareholders and that the defendants have conspired to violate various provisions of the antitrust laws including Section 7 of the Clayton Act, 15 U.S.C. § 18 and Section 1 of the Sherman Act, 15 U.S.C. § 1. Defendant Pabst, on November 22, 1982, counterclaimed against the Jacobs Group, JMSL Acquiring Corp. (“JMSL”), and PST Acquiring Corp. (“PST”), seeking a temporary restraining order and a preliminary injunction enjoining JMSL from acquiring shares of Pabst pursuant to the October 27, 1982 tender offer by JMSL (the “JMSL tender offer”). Pabst alleges that the counterclaim defendants violated Section 14(d) & (e) of the Exchange Act by creating multiple proration pools, and that if multiple proration pools are permissible, the counterclaim defendants nevertheless violated Section 14(d) & (e) by failing to make timely public disclosure of its ability and intention to raise the price of the JMSL offer and of its intention to create multiple proration pools. On November 24, 1982, the Court denied the Jacobs Group’s and" }, { "docid": "13027698", "title": "", "text": "sell its Pabst shares to others for more than $24 per share. Since plaintiffs’ breach of contract claim against the Jacobs Group is the only one which remains unresolved in this consolidated litigation, the Court finds no just reason exists for delay in entering a final judgment on all claims which were dismissed on November 21, 1983, or by the order to be entered today. This is so because the major claims involving federal securities violations, antitrust violations and tortious interference with contract claims have already been timely decided. The sole remaining breach of contract claim is subsidiary and unrelated to those issues and it involves fewer than all the multiple parties to this suit. It would be unduly harsh and wholly unrealistic to delay an appeal on the major unrelated issues until after trial of the subsidiary breach of contract claim. Accordingly, the Court will enter a Rule 54(b) certification on the claims already decided. An order will be entered in accordance with this Opinion. . Kalmanovitz is a citizen of California and the beneficial owner of twenty shares of common stock of Pabst. (D.I. 1 at 1.) . This Court in Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. 922 (D.Del.1983), dismissed Counts XI and XII of Kalmanovitz’s original, twelve-count complaint in C.A. No. 82-797. . The Court has six prior published opinions concerning this litigation: Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del. 1983); United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del.1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del. 1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.), aff'd, 707 F.2d 1392 & 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del. 1982). . The tender offer was to be made by JMSL Acquiring Corp. (“JMSL”), a Delaware corporation wholly owned by PST Acquiring Corp. (\"PST”), another Delaware corporation which was to be owned 50% by the Jacobs Group and 50% by Kalmanovitz. (D.I. 121, Ex. 1 at 3.) As part of the October 26" }, { "docid": "1684792", "title": "", "text": "this case now stands before the Court, it would be inappropriate to consider the meaning of the November 18, 1982 letter without this extrinsic evidence in order to fully explain the letter’s terse language. Jacobs’ averment that Kalmanovitz agreed to abide by the Jacobs Group’s decision in order to collect his payment creates a genuine material factual dispute as to whether Kalmanovitz and S & P were entitled to this payment. Thus, this issue is not ripe for judgment as a matter of law, particularly in light of this Circuit’s strict view towards summary judgment, see Tomalewski v. State Farm Life Insurance Company, 494 F.2d 882, 884 (3d Cir.1974). The Court will therefore deny plaintiff’s motion for partial summary judgment on its breach of contract claim against the Jacobs Group. CONCLUSION The Court will therefore dismiss the plaintiff’s Sherman Act and tortious interference with contractual relations claims, and will deny the plaintiffs’ motion for summary judgment on the liability issue on its breach of contract claim against the Jacobs Group. An order will be entered in. accordance with this Opinion. . Kalmanovitz v. G. Heileman Brewing Co., Inc., C.A. No. 82-797 (D.Del. filed Dec. 10, 1982). . Kalmanovitz v. G. Heileman Brewing Co., Inc., C-83-0196-MHP (N.D.Cal. filed Jan. 14, 1983). . Kalmanovitz v. Jacobs, Case No. 111041 (Marin County Super.Ct. filed Jan. 17, 1983). . In its original motion, the Jacobs Group moved for summary judgment on plaintiffs' claim of tortious interference with contractual relations against the Jacobs Group (D.I. 116), on the ground that \"a party to a contract cannot as a matter of law sue the other party to that contract for tortious interference/’ (D.I. 114 at 29.) See Donohoe v. Watts, 546 F.Supp. 753, 757 (D.D.C.1982); Professional Investors Life Ins. Co. v. Roussel, 528 F.Supp. 391, 403 (D.Kan.1981); W. Prosser, Handbook of the Law of Torts 934 (9th ed. 1971). The plaintiffs’ brief in opposition to this motion (D.I. 127) did not address this part of the Jacobs Group’s motion. Plaintiffs conceded the Jacobs Group to be correct on this point at oral argument (D.I. 136 at" }, { "docid": "4228765", "title": "", "text": "affirmed and the case remanded for disposition on plaintiff’s breach of contract claim. . The Jacobs Group consisted of Jacobs, Dennis Mathisen, Gerald A. Schwalbach, and Daniel T. Lindsay. . See Kalmanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385 (D.Del.1984); Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del.1983); United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del.1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del.1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.), aff'd, 707 F.2d 1392, 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982). The two most recent district court opinions form the basis of the present appeal. . Plaintiffs collectively will be referred to as plaintiff or Kalmanovitz. . Although Kalmanovitz was unsuccessful in obtaining control of Pabst in 1982, in February of 1985 plaintiff’s S & P Corp. purchased a controlling interest in the part of Pabst not retained by Heileman. Consequently, and so as not to be put in the position of suing himself, plaintiff dismissed his claims against Pabst and Smith. . As will be discussed, infra, system-wide abuses in the securities industry have been held to have antitrust implications. . In Rothberg v. National Banner Corp., 259 F.Supp. 414 (E.D.Pa.1966), the court permitted an antitrust case to proceed against the broker-defendants who were the sole market makers in the stock of a company. Accordingly, the defendants treated the securities as part of their stock in trade, and not merely as the vehicle for gaining control of the company. . If defendants had conspired to restrain competition in tender offers generally or if lending institutions combined with certain tender offerors to restrain trade in tender offers generally, antitrust implications might be raised, see Tose, 648 F.2d at 892-93 (conspiracy to deny access to the credit markets raises antitrust concerns), but such issues are not before us today. ■ . Pub.L. 90-439, 82 Stat. 454 (1968), codified as amended at 15 U.S.C. §§ 78/(i), 78m(d)-(e), 78n(d) to (f) (1982). . Indeed, if plaintiffs assertions were" }, { "docid": "4228764", "title": "", "text": "165 (6th Cir.1981). Thus we hold that a plaintiff who occupies the dual roles of a very substantial tender offeror and merely a nominal target shareholder may be considered to be only an offeror for the purpose of judging his standing to bring the types of claims plaintiff has asserted in this case. For similar reasons, we conclude that the district court did not err in dismissing plaintiffs claims under §§ 13(e) and 14(e) of the Exchange Act. IV. We affirm the district court’s grant of summary judgment to defendants on plaintiff’s claim under § 10(b) of the Exchange Act and Rule 10b-5 because Kalmanovitz was not a purchaser or seller of securities as required by Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). And we also affirm the dismissals and/or grants of summary judgments to defendants Kalmanovitz’ various state law claims that were certified to this Court by the district court. Accordingly, the judgments of the district court certified to us on appeal will be affirmed and the case remanded for disposition on plaintiff’s breach of contract claim. . The Jacobs Group consisted of Jacobs, Dennis Mathisen, Gerald A. Schwalbach, and Daniel T. Lindsay. . See Kalmanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385 (D.Del.1984); Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del.1983); United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del.1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del.1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.), aff'd, 707 F.2d 1392, 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982). The two most recent district court opinions form the basis of the present appeal. . Plaintiffs collectively will be referred to as plaintiff or Kalmanovitz. . Although Kalmanovitz was unsuccessful in obtaining control of Pabst in 1982, in February of 1985 plaintiff’s S & P Corp. purchased a controlling interest in the part of Pabst not retained by Heileman. Consequently, and so as not to be put in the" }, { "docid": "4228747", "title": "", "text": "On December 20, 1982, the district court denied the preliminary injunction, and on December 22,1982 — the withdrawal date for the HBC offer — Kalmanovitz increased his tender offer to $40 per share. On December 23, 1982, however, Heileman accepted for payment 5.6 million Pabst shares, thus ending the contest for control of the brewing company. To date plaintiff has not received any of the proceeds from the Jacobs Group’s tender of its Pabst shares to HBC. The procedural history of this case is somewhat complex inasmuch as the present appeal stems from the consolidation of three separate cases and has spawned no less than seven district court opinions. Initially, Kalmanovitz, as a disappointed tender offeror and as a shareholder of Pabst, and S & P Co., a California corporation wholly owned by Kalmanovitz, brought suit in the district court in Delaware. The complaint alleged violations of federal securities and antitrust laws and Delaware corporate law by G. Heileman Brewing Company, Russell G. Cleary, HBC Acquisition, Inc., Pabst, and William F. Smith, Jr. Subsequently, Kalmanovitz, individually and as a Pabst shareholder, filed suit in the district court in California, alleging similar federal claims and an additional California state law claim of tortious interference with contractual relations against the same parties and also against the members of the Jacobs Group. Almost immediately thereafter, plaintiff instituted a third action — based on breach of contract — in California state court against the Jacobs Group. After the latter ease was removed to federal court in California, the two California federal cases were consolidated, transferred to Delaware, and then consolidated with the initial case. In November of 1983, the district court dismissed plaintiff’s claims based on §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1982), and his tortious interference with contract claim under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del.1983). In September of 1984, the district court granted partial summary judgment to defendants with regard to the federal securities and Delaware state" }, { "docid": "13027701", "title": "", "text": "at 2088. . See also Pabst Brewing Company v. Kalmanovitz, 551 F.Supp. 882 (D.Del.1982) where this Court found that the \"[f]acts clearly indicate that Kalmanovitz and Jacobs ... have personally invested substantial capital in order to capitalize the tender offer by the acquiring corporations. Thus, there is no question that Kalmanovitz and Jacobs are the dominating and motivating principals behind the JMSL tender offer.” 551 F.Supp. at 892-93. . Kalmanovitz argues that he has standing to bring an action for money damages for violations of Section 14(d). However, he fails to cite and the Court has not found any authority to support his claim. . 549 F.Supp. 1050, 1054, n. 3, 4. . See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 31-32, 97 S.Ct. 926, 944, 51 L.Ed.2d 124 (1977). . See Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 18-19, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979). . The Court also noted that those who have a contractual right to purchase or sell securities have also been recognized as \"purchasers” or \"sellers” of securities for purposes of Rule lob-5, not because of judicial conclusion that they were similarly situated to “purchasers” or \"sellers” but because the definitional provisions of the 1934 Act grant them such a status. 421 U.S. at 751, 95 S.Ct. at 1932-33. . The defendants also argue that: (a) plaintiff has failed to make his allegations with the requisite specificity and; (b) plaintiff failed to plead reliance. (D.I. 166 at 25-28.) Because the Court found that Kalmanovitz lacks stand ing to sue as a \"purchaser or seller,” the Court need not reach defendants' other arguments. . Although Italo Petroleum Cojp. deals with a statute which was later amended to the current edition of Section 160, subsection (c) existed in the wording of the statute prior to the amendment. . Because the Court finds that Kalmanovitz no longer has standing to pursue the claim that defendant Smith had breached his fiduciary duty to the Pabst shareholders, this Court need not reach defendants’ other arguments that the derivative claims must be dismissed because: \"(a) of plaintiff's" }, { "docid": "13027647", "title": "", "text": "OPINION LATCHUM, Senior District Judge. 1. BACKGROUND Plaintiffs, Paul Kalmanovitz (“Kalmanovitz”), individually and as a shareholder of Pabst Brewing Company (“Pabst”), and S & P, a California corporation (“S & P”) (collectively “plaintiffs”), brought this action on December 10, 1982, pursuant to (a) Sections 10(b), 13(e), 14(d), and 14(e) of the Exchange Act, 15 U.S.C. §§ 78j(b), 78m(e), 78n(d), and 78n(e), and the rules and regulations promulgated by the SEC thereunder; (b) Section 1 of the Sherman Act, Section 7 of the Clayton Act, 15 U.S.C. §§ 1, 18; and (c) the laws of the State of Delaware. (Docket Item [“D.I.”] 1 at 3.) Originally, three separate lawsuits were filed, however, the cases have subsequently been consolidated into this present case. This lawsuit began in 1982, the result of the fierce battle for control of Pabst between Kalmanovitz, the Jacobs Group which included Irwin L. Jacobs (“Jacobs”), Dennis Mathisen (“Mathisen”), Gerald A. Schwalbach (“Schwalbach”) and Daniel I. Lindsay (“Lindsay”), and G. Heileman Brewing Company, Inc. (“Heileman”). Presently pending before this Court are two motions: (a) defendants’ motion to dismiss Counts I through X of the Complaint (D.I. 166); and (b) plaintiffs’ motion to certify the antitrust and tortious interference claims for appeal pursuant to Fed.R.Civ.P. 54(b). (D.I. 160.) II. FACTS Because this Court has already recounted the details of the battle for control of Pabst, this discussion therefore will be limited to a thumbnail sketch of the operative facts. On October 26, 1982, Kalmanovitz and Jacobs, along with three of Jacobs’ associates (the “Jacobs Group”), entered into a Memorandum of Terms (the “October 26 contract”), by which Kalmanovitz and the Jacobs Group, through JMSL Acquiring Corporation (“JMSL”), agreed to make a tender offer for 3,000,000 Pabst shares at $24 per share. (D.I. 121, Ex. 1 at 2.) Acquisition of these 3,000,000 shares, combined with 1,440,305 Pabst shares the Jacobs Group already owned, would have given the parties to the agreement a majority of outstanding Pabst stock. On October 27, 1982, Kalmanovitz and the Jacobs Group made the tender offer for 3,000,000 shares of Pabst stock at $24 per share (the" } ]

[ { "docid": "22639019", "title": "", "text": "when substantial evidence shows that it was unlikely that the officer would have been promoted in any event. That evidence is missing here. We have not therefore ruled that in every case the simultaneous voidance of an OER and affirmance of a passover will always constitute an abuse of discretion. Earlier in this opinion we have said that it takes more than harmless error or simple injustice to win judicial relief. But, the errors in this case as put before us are not innocuous. It is admitted by the parties that OERs are the single most important documents in an officer’s records. The court said so in Brooks v. United States, supra, 213 Ct. Cl. at 120, 126. When plaintiff was first considered by a selection board for temporary promotion to major, four OERs in his record were defective for inaccuracy. One was the lowest rating he had ever received, and all four were well below his average. The only conclusion that can be reached with the information before us is that these four OERs, which did \"not represent accurate appraisals” of plaintiffs record and were, again to quote the Correction Board, \"unjust as well as prejudicial to applicant’s [plaintiffs] Air Force career,” necessarily had a substantial impact on the selection board’s decision. Although plaintiffs record steadily improved with the accumulation of good OERs, he was passed over again for temporary promotion to major by a selection board which considered the detrimental OERs before they were removed from his file. His troubles were also impacted by the previous passover(s) for promotion. When the Correction Board removed the prejudicial OERs because it said that they were erroneous, unjust, inaccurate, and prejudicial to plaintiffs career, it was ruling in effect that he had not been considered for promotion on the \"fair and equitable” basis mandated by the statutes applicable to Army and Air Force officer promotions. 10 U.S.C. §§ 3442(c), 8442(c). Since he was not so considered, his passovers should have been removed too, so that he could have had a clean slate for selection board consideration on a \"fair and equitable”" } ]

[ { "docid": "22822204", "title": "", "text": "given plaintiff a 9/4 rating he, Smith, would have indorsed and concurred in it. Since the rater and indorser would have given plaintiff a 9/4, and the impression that plaintiff would not be approved for this by Colonel Mendel because of the check-ride issue which was entirely false, plaintiff says that he was not fairly and honestly rated. We agree. Again AFM 36-10(C3) was nullified and bypassed in the rating process on mistaken facts and for expediency personal to the rater’s own interests. Plaintiffs military career was thus ruined through no fault of his own, but because of improper command influence and bureaucratic bungling. This was a clear error and an injustice to plaintiff but the Correction Board refused to exercise its authority and mandate, under statute and regulation, to correct it. We do not think that it had to grant a hearing to do so, especially where the evidence was so clear and convincing, and we discount plaintiffs argument on that point. AFR 31-3, § 3, ¶ 9 (Oct. 21, 1970). But, we do think this was the kind of error and injustice that cried aloud for relief and that Congress had in mind when creating correction boards. Otherwise, the integrity of the promotion system is seriously compromised. Plaintiff was not rated on the merits of his performance as an officer of the United States Air Force. He had a legal right to be so graded on a \"fair and equitable” basis and to have his proper rating considered by selection boards. 10 U.S.C. §§ 3442(c), 8442(c). Defendant’s failure to follow the statutes and its published procedures is reversible for legal error where those procedures are required and their violation is substantial and prejudicial. Cruz-Casado v. United States, 213 Ct. Cl. 498, 553 F.2d 672 (1977); Borgford v. United States, 208 Ct. Cl. 1040 (1976); Bray v. United States, 207 Ct. Cl. 60, 515 F.2d 1383 (1975). The Correction Board brushed the case aside with the simple explanation that plaintiff had \"not submitted sufficient evidence to establish a showing of probable error or injustice in the case.” We find" }, { "docid": "21311770", "title": "", "text": "stating: Where a correction board fails to correct an injustice or a passover is challenged but a back pay claim has not arisen, plaintiffs remedies, if any, would be in the district court by mandamus, 28 U.S.C. § 1361, or declaratory judgment, 28 U.S.C. § 2201. [Sanders, 219 Ct. Cl. at 296 n.10, 594 F.2d at 810 n.10.] It is unnecessary here to belabor these now well-settled rules of law and to cite or discuss the cases supporting the same, as set forth in the precedents cited above. What is necessary now is to see if plaintiff has met the strict and difficult tests of Skinner and Sanders, subsequently reaffirmed in several decisions, including the recent one of Hary v. United States, 223 Ct. Cl. 10, 618 F.2d 704 (1980). We think without doubt that plaintiff has failed to meet the tests. The trial judge has not shown us that what he found to be an unjust OER amounted to legal error. He weighed the testimony of plaintiff and his wife, of plaintiffs friend and subordinate, Mr, Cook, and the evidence of the commendation of the Electronics Command and its indorsement by an officer not in the rating chain for this particular OER, compared the challenged OER with others plaintiff received, and concluded that there was substantial evidence of prejudice and error of fact so as to make an \"unfair and unjust” OER into one written in legal error. He also gave weight to the speculation of the correction board that the OER \"may have been the determining factor for his non-selection” to the grade of major, but he did not note that the correction board also said that the OER constituted a \"valid appraisal” of plaintiffs performance of duty during the rating period which it covered. \"A finding of probable error or injustice cannot be based on mere speculation.” Hary v. United States, supra, 223 Ct. Cl. at 23 n.18, 618 F.2d at 711 n.18. The trial judge heard the evidence, evaluated plaintiffs performance, and concluded that the OER for the period in dispute did not accurately reflect plaintiffs" }, { "docid": "22822213", "title": "", "text": "(1975). But, we can and do review the actions of a selection board for legal error, which may result in an award of back pay for a board action which results in an illegal discharge. We also review correction board actions where it has been alleged that they, too, may have violated some statutory requirement or regulation. Where there is legal error in such proceedings, we can also give back pay and appropriate collateral relief under 28 U.S.C. § 1491. The correction board could give additional relief, such as ordering a promotion. The correction board can also correct an injustice not amounting to legal error. Here our authority is more restricted. It takes more than an unfair rating or simple injustice to merit our consideration or judicial relief. It must be an unlawful act made so by violation of statute, or regulation, or published mandatory procedure, or unauthorized act, or so unsupported by the evidence as to be a gross injustice, unlawful because of clear legal or factual error, manifest abuse of discretion, or arbitrary and capricious action amounting to bad faith or fraud, and seriously prejudicial. Sanders v. United States, ante at 285. See also Borgford v. United States, supra; Reale v. United States, 208 Ct. Cl. 1010, cert. denied, 429 U.S. 854 (1976); Jordan v. United States, supra; Lewicki v. United States, 204 Ct. Cl. 1 (1974); Skaradowski v. United States, 200 Ct. Cl. 488, 471 F.2d 627 (1973); Kaeserman v. United States, 202 Ct. Cl. 1081 (1973); Duhon v. United States, 198 Ct. Cl. 564, 461 F.2d 1278 (1972); Stephens v. United States, 174 Ct. Cl. 365, 358 F.2d 951 (1966). \"The fact that this court has the jurisdiction to review actions of military correction boards is not disputable. Hertzog v. United States, 167 Ct. Cl. 377, 383-384 (1964), and cases cited therein.” Armstrong v. United States, 205 Ct. Cl. 754, 761 (1974). Defendant raises the holding in United States v. Testan, 424 U.S. 392 (1976), as a defense. That was a civilian pay case involving the Back Pay Act and classification of certain civil service employees." }, { "docid": "21311765", "title": "", "text": "a record that accurately portrays his career. The record was erroneous by the decision and admission of the Air Force itself. It was also shown that with these illegal OERs out of his file plaintiff was in the competitive zone for promotion. The legal error in Skinner was the illegal use of command influence on the rater, arising from information the rater and indorser confessed was erroneous. This violated the same statutes as in Riley. The court in Skinner ruled: * * * It takes more than an unfair rating or simple injustice to merit our consideration or judicial relief. It must be an unlawful act made so by violation of statute, or regulation, or published mandatory procedure, or unauthorized act, or so unsupported by the evidence as to be a gross injustice, unlawful because of clear legal or factual error, manifest abuse of discretion, or arbitrary and capricious action amounting to bad faith or fraud, and seriously prejudicial. [Citations omitted.] [219 Ct. Cl. at 333,594 F.2d at 830.] The same day that Skinner was decided, the court en bane decided Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979). In that case there was also plain legal error. The correction board removed certain improper OERs from Capt. Sanders’ file but did not remove, as he requested, the passovers that they had occasioned. Had it done so, it was evident he would have been promoted because he was next in line for it. The court unanimously concluded that he had been discharged by reason of legal error. An officer is entitled to the pay of the position to which he was appointed until legally removed. 37 U.S.C. § 204 (1976). The Sanders court did not entirely rule out the possibility that somewhere down the road in the future there might be such an error or injustice so shocking to the conscience and ignored by a correction board that evidence could show it rose to the level of legal error necessary for the court to remedy it. As yet, the court has encountered no such cases, post Sanders" }, { "docid": "21311767", "title": "", "text": "and Skinner. One thing is clear, the court cannot itself correct a simple injustice or direct a correction board to do so, without the correction implementing a money judgment. Black v. United States, 223 Ct. Cl. 733 (1980). Correction boards have the authority by statute to remove or correct an error or injustice. 10 U.S.C. § 1552(a) (1976). The statute says: \"Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.” An example of the correction of an injustice may be illustrated, for instance, where the board orders a promotion or changes the character of a soldier’s discharge from dishonorable to honorable as a matter of clemency to correct a factual but not necessarily a legal error. The court cannot do this because it does not involve a monetary claim, but is equitable in nature. The court said in Sanders: * * * Once a plaintiff has sought relief from the Correction Board, such plaintiff is bound by that board’s determination unless he can meet the difficult standard of proof that the Correction Board’s decision was illegal because it was arbitrary, or capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation, or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, and money is due. [219 Ct. Cl. at 298, 594 F.2d at 811.] The court also said in that case: * * * To recover for failure to correct an alleged injustice, such as perhaps based on gross material error of fact or an action contrary to all evidence, it must be proved that such failure was arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff, and with monetary consequences. In such event, the abuse of administrative discretion rises to the level of legal error which merits judicial relief. These are comparatively rare cases. [Citations omitted.] Perhaps they are infrequent because the proof must overcome the strong, but rebuttable, presumption that administrators of the military, like other" }, { "docid": "22586934", "title": "", "text": "his record before these selection boards were inaccurate. Plaintiff presented this claim to the Correction Board which recommended that (1) the OER for the period September 1963 through April 1964 (April 1964 OER) be removed from plaintiffs record because it was not signed by the rating officer, (2) the actions of the selection boards challenged by plaintiff be sustained because they were not materially in error or unjust due to the presence of the voided April 1964 OER, and (3) all other relief be denied because of the insufficiency of evidence demonstrating probable error or injustice. The Assistant Secretary of the Air Force accepted in full the Board’s recommendation. In this action, now before us on cross-motions for summary judgment, plaintiff challenges the Board’s decision on essentially two grounds. First, he asserts that the Board was arbitrary and capricious in failing to recommend the removal of all the OERs he says were inaccurate. Second, he contends that, even if the Board was correct in recommending that only the April 1964 OER be removed, it committed error when it failed also to recommend the voiding of the passovers which occurred while this OER was wrongfully included in his record. It is by now established in this court that such a claimant seeking back pay on account of a separation or relief from active duty must show both that (a) there was a material legal error or an injustice in the proceedings of the correction board, or other entity within the military department, which led to the adverse action against him, and álso (b) that there is an adequate nexus or link between the error or injustice and the adverse action (e.g., passover and nonselection for promotion). See Sanders v. United States, 219 Ct. Cl. 285, 310-11, 594 F.2d 804, 818 (1979); Skinner v. United States, 219 Ct. Cl. 322, 328-29, 594 F.2d 824, 828 (1979); Riley v. United States, 221 Ct. Cl. 308, 313, 608 F.2d 441, 443-44 (1979); Guy v. United States, 221 Ct. Cl. 427, 435-41, 608 F.2d 867, 872-74, 875 (1979). To recover back pay, it is not" }, { "docid": "21311764", "title": "", "text": "in plaintiffs case before the correction board and selection boards as \"unfair and unjust,” i.e., an \"injustice” which he equates with legal error, as shown by the above quotation from his opinion. He cites just two cases in support of this proposition. Riley v. United States, 221 Ct. Cl. 308, 313, 608 F.2d 441, 443 (1979), and Skinner v. United States, 219 Ct. Cl. 322, 330-31, 594 F.2d 824, 829 (1979). Those cases do not support the proposition that the court can overturn selection boards and correction boards because something that they have done or failed to do is simply \"unfair and unjust.” Those were cases in which pure legal error was committed and there are many cases proclaiming our jurisdiction to correct such errors. Capt. Riley was passed over for promotion because of two OERs which were voided by a review board. The correction board refused his request to remove the passovers. This was legal error because under the statutes, 10 U.S.C. §§ 3442(c), 8442(c) (1976), an officer is entitled to be considered on a record that accurately portrays his career. The record was erroneous by the decision and admission of the Air Force itself. It was also shown that with these illegal OERs out of his file plaintiff was in the competitive zone for promotion. The legal error in Skinner was the illegal use of command influence on the rater, arising from information the rater and indorser confessed was erroneous. This violated the same statutes as in Riley. The court in Skinner ruled: * * * It takes more than an unfair rating or simple injustice to merit our consideration or judicial relief. It must be an unlawful act made so by violation of statute, or regulation, or published mandatory procedure, or unauthorized act, or so unsupported by the evidence as to be a gross injustice, unlawful because of clear legal or factual error, manifest abuse of discretion, or arbitrary and capricious action amounting to bad faith or fraud, and seriously prejudicial. [Citations omitted.] [219 Ct. Cl. at 333,594 F.2d at 830.] The same day that Skinner was" }, { "docid": "21311776", "title": "", "text": "frailty of human memory. But, the plaintiff must establish a \"misstatement of a significant hard fact,” Hary v. United States, supra, 223 Ct. Cl. at 17, 618 F.2d at 708, or \"gross material error of fact or an action contrary to all evidence,” Sanders v. United States, supra, 219 Ct. Cl. at 301, 594 F.2d at 813, or that the decision of the correction board is \"so unsupported by the evidence as to be a gross injustice,” i.e., clearly erroneous, Skinner v. United States, supra, 219 Ct. Cl. at 333, 594 F.2d at 830. Plaintiff has simply failed to meet its burden in this case in order to overcome the OER and the correction board decision. The cold reality of the situation is that it will always be difficult to overcome the discretionary judgments and evaluations by the rater and indorser, especially many years after the performance was reported. However, this is as it should be. This court is not here to second-guess them. Further, \"we will not substitute our judgment for the board’s when reasonable minds could reach differing conclusions.” Sanders v. United States, supra, 219 Ct. Cl. at 302, 594 F.2d at 814. We do not run the military services. Orloff v. Willoughby, 345 U.S. 83 (1953). The court said in Reale v. United States, 208 Ct. Cl. 1010, 1013, cert. denied, 429 U.S. 854 (1976): Plaintiff sees us as made into a sort of super Correction Board by Pub. L. 92-415, supra. We do not agree. We are given power to order correction of records, and reinstatement but only to make the relief complete as to matters within our jurisdiction, not to exercise discretion for the Service Secretaries and take over the functions of Correction Boards. Any course other than the one stated would permit an officer to challenge his OERs by bringing in his self-serving testimony and that of his wife and friends not in the rating chain, to upset those OERs, and thus render the entire military promotion and rating system a farce by destroying its integrity. Show us a clear, legal error and we" }, { "docid": "21311769", "title": "", "text": "public officers, discharge their duties correctly, lawfully, and in good faith. [Citations omitted.] Strong policies compel the court to allow the widest possible latitude to the armed services in their administration of personnel matters. * * * Thus, while we may disagree with a correction board about whether or not a specific situation was unjust, we will not substitute our judgment for the board’s when reasonable minds could reach differing conclusions. Snell v. United States, 168 Ct. Cl. 219, 227 (1964). [Sanders, 219 Ct. Cl. at 301-02, 594 F.2d at 813-14.] Concurring in the Sanders result but writing separately, Judge Nichols, joined by Judge Smith, would not admit that there was any right to judicial review except for legal error. Claims of \"injustice” were described as moral claims for clemency, but not within the court’s jurisdiction to decide or to require the correction board to decide \"no matter how arbitrary or capricious, in merely moral cases.” 219 Ct. Cl. at 319, 594 F.2d at 823 (Nichols, J., concurring). The majority opinion acknowledged this difficulty in stating: Where a correction board fails to correct an injustice or a passover is challenged but a back pay claim has not arisen, plaintiffs remedies, if any, would be in the district court by mandamus, 28 U.S.C. § 1361, or declaratory judgment, 28 U.S.C. § 2201. [Sanders, 219 Ct. Cl. at 296 n.10, 594 F.2d at 810 n.10.] It is unnecessary here to belabor these now well-settled rules of law and to cite or discuss the cases supporting the same, as set forth in the precedents cited above. What is necessary now is to see if plaintiff has met the strict and difficult tests of Skinner and Sanders, subsequently reaffirmed in several decisions, including the recent one of Hary v. United States, 223 Ct. Cl. 10, 618 F.2d 704 (1980). We think without doubt that plaintiff has failed to meet the tests. The trial judge has not shown us that what he found to be an unjust OER amounted to legal error. He weighed the testimony of plaintiff and his wife, of plaintiffs friend and" }, { "docid": "21311768", "title": "", "text": "meet the difficult standard of proof that the Correction Board’s decision was illegal because it was arbitrary, or capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation, or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, and money is due. [219 Ct. Cl. at 298, 594 F.2d at 811.] The court also said in that case: * * * To recover for failure to correct an alleged injustice, such as perhaps based on gross material error of fact or an action contrary to all evidence, it must be proved that such failure was arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff, and with monetary consequences. In such event, the abuse of administrative discretion rises to the level of legal error which merits judicial relief. These are comparatively rare cases. [Citations omitted.] Perhaps they are infrequent because the proof must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith. [Citations omitted.] Strong policies compel the court to allow the widest possible latitude to the armed services in their administration of personnel matters. * * * Thus, while we may disagree with a correction board about whether or not a specific situation was unjust, we will not substitute our judgment for the board’s when reasonable minds could reach differing conclusions. Snell v. United States, 168 Ct. Cl. 219, 227 (1964). [Sanders, 219 Ct. Cl. at 301-02, 594 F.2d at 813-14.] Concurring in the Sanders result but writing separately, Judge Nichols, joined by Judge Smith, would not admit that there was any right to judicial review except for legal error. Claims of \"injustice” were described as moral claims for clemency, but not within the court’s jurisdiction to decide or to require the correction board to decide \"no matter how arbitrary or capricious, in merely moral cases.” 219 Ct. Cl. at 319, 594 F.2d at 823 (Nichols, J., concurring). The majority opinion acknowledged this difficulty in" }, { "docid": "22586943", "title": "", "text": "to remove the March 1963 OER as well. II. Impact of defective OERs The next question is whether the selection board’s passovers-for-promotion were or may have been so much influenced by the two defective OERs we have found in Part I, supra, as to warrant our directing a voiding of the passovers (or to order a further inquiry into the impact of the erroneous OERs). The fundamental principle permeating our consideration of this issue of impact or nexus is whether the claimant’s record before the selection boards (including the two defective OERs) still portrayed his service career on a \"fair and equitable basis”, as the statutes require. 10 U.S.C. §§ 3442(c), 8442(c) (1976); Sanders, supra, 219 Ct. Cl. at 302, 594 F.2d at 814. If a claimant’s record before the selection boards falls below that standard, then any resulting passovers are void and his discharge is unlawful. Riley, supra, 221 Ct. Cl. at 312, 608 F.2d at 443 (1979). But merely because the Correction Board voids an OER, it is not automatically obligated to void any passover emanating from a selection board that had a defective OER before it. The officer must show that the presence of the defective OER made his whole record before the selection board something less than \"substantially complete and fair.” Sanders, supra, 219 Ct. Cl. at 302, 594 F.2d at 814. Harmless error, unrelated to an officer’s nonselections, will not warrant judicial relief. Riley, supra, 221 Ct. Cl. 312, 608 F.2d at 443. In making such an appraisal in this case we cannot rely on the Correction Board’s determination that the presence of a defective OER in plaintiffs record did not vitiate the actions of the selection boards considering him. First, the Correction Board apparently used the \"but for” test — the very test we explicitly rejected in Sanders. Second, because the Board failed to remove the March 1963 OER (which we have held in Part I, supra, to be legally erroneous), the Board’s conclusion of lack of nexus did not take into account the effect of that void OER. In these circumstances we must" }, { "docid": "22586942", "title": "", "text": "Guy, supra, 221 Ct. Cl. 433, 608 F.2d 870-71. Accordingly, we find no error in the Correction Board’s refusal to remove these OERs. We find, however, that the Board’s failure to remove the March 1963 OER was erroneous. Major Lasley’s undisputed statement establishes that the ratings he submitted for that OER were not the ratings found in the OER considered by the selection boards. His explanation about the practice of signing OERs in blank is corroborated by two fellow officers. The inference that the ratings were either intentionally or unintentionally downgraded is inescapable. But it is very plain that the OER must represent the rater’s own evaluation, not that of someone else. The Correction Board gave no explanation for its failure to remove this OER. Defendant argues that the concurrence of the indorsing officials established the accuracy of the ratings, but the Board rejected this very rationale when it removed the April 1964 OER after finding that it had not been signed by the rater. We can see no rational basis for the Board’s failure to remove the March 1963 OER as well. II. Impact of defective OERs The next question is whether the selection board’s passovers-for-promotion were or may have been so much influenced by the two defective OERs we have found in Part I, supra, as to warrant our directing a voiding of the passovers (or to order a further inquiry into the impact of the erroneous OERs). The fundamental principle permeating our consideration of this issue of impact or nexus is whether the claimant’s record before the selection boards (including the two defective OERs) still portrayed his service career on a \"fair and equitable basis”, as the statutes require. 10 U.S.C. §§ 3442(c), 8442(c) (1976); Sanders, supra, 219 Ct. Cl. at 302, 594 F.2d at 814. If a claimant’s record before the selection boards falls below that standard, then any resulting passovers are void and his discharge is unlawful. Riley, supra, 221 Ct. Cl. at 312, 608 F.2d at 443 (1979). But merely because the Correction Board voids an OER, it is not automatically obligated to void" }, { "docid": "22822212", "title": "", "text": "part: Ratings and promotions are discretionary matters. We must not interfere with these internal affairs of the military unless there is a showing of clear error, abuse of discretion, or arbitrary and capricious action. Boyd v. United States, 207 Ct. Cl. 1, cert. denied, 424 U.S. 911 (1975); Dorl v. United States, 200 Ct. Cl. 626, cert. denied, 414 U.S. 1032 (1973). * * * [Emphasis supplied.] As we said in Savio v. United States, 213 Ct. Cl. 737 (1977), this is \"ordinarily” the rule. We adhere to it. But, in considering our permissible scope of review, it is proper to bear in mind here some of the distinctions between selection and correction boards. The former select officers for promotion. The court cannot do this. We can award a person pay above the position he occupied only if there is a clear-cut, legal entitlement to it. Such cases are rare. See Selman v. United States, 204 Ct. Cl. 675, 684, 498 F.2d 1354, 1358 (1974); cf. Doggett v. United States, 207 Ct. Cl. 478, 482 (1975). But, we can and do review the actions of a selection board for legal error, which may result in an award of back pay for a board action which results in an illegal discharge. We also review correction board actions where it has been alleged that they, too, may have violated some statutory requirement or regulation. Where there is legal error in such proceedings, we can also give back pay and appropriate collateral relief under 28 U.S.C. § 1491. The correction board could give additional relief, such as ordering a promotion. The correction board can also correct an injustice not amounting to legal error. Here our authority is more restricted. It takes more than an unfair rating or simple injustice to merit our consideration or judicial relief. It must be an unlawful act made so by violation of statute, or regulation, or published mandatory procedure, or unauthorized act, or so unsupported by the evidence as to be a gross injustice, unlawful because of clear legal or factual error, manifest abuse of discretion, or arbitrary" }, { "docid": "21311778", "title": "", "text": "can cope with it. We do not have one here. There was substantial evidence to support the OER as given to plaintiff. It was not, therefore, arbitrary and capricious for the correction board not to change it. It is the rater’s view that counts in the end, absent legal error. OERs are discretionary matters in which the court must be scrupulous about its intervention. Boyd v. United States, 207 Ct. Cl. 1, cert. denied, 424 U.S. 911 (1976). In the face of the presumption that the OER is correct because the rater is presumed to have acted in good faith, \"plaintiffs must do more, to invoke court intervention, than merely allege or prove that an OER seems inaccurate, incomplete, or subjective in some sense.” Hary v. United States, supra, 223 Ct. Cl. at 17, 618 F.2d at 708. And, as further stated in the latter case, \"merely because the Correction Board voids an OER, it is not automatically obligated to void any passover emanating from a selection board that had a defective OER before it. The officer must show that the presence of the defective OER made his whole record before the selection board something less than 'substantially complete and fair.’” Here, unlike in Skinner, for instance, there is no concession by the rater or indorser that the rating was factually wrong. Also, this case is unlike Sanders because in that case the correction board had voided four OERs. Further, there is no showing of plaintiffs relative standing to others waiting in line for promotion or at what point there was a \"cutoff.” The best we have is the correction board’s speculation that the challenged OER might have made a difference. But, since it stated also that the OER was correct we cannot give plaintiff back pay. Except for an inference of potential prejudice by the rater, not supported by this record, the fact that this fine officer had better ratings before and after the challenged OER is of no legal moment nor of probative value as to the rating period covered by the one OER with which he is" }, { "docid": "11775715", "title": "", "text": "in his records before the 1972 selection board of the two subsequently voided, prejudicial OERs, and he was therefore not fairly considered for promotion. Further, despite the fact that these OERs were not in his records before the 1973 selection board, that board did have before it the prejudicial fact that plaintiff had been passed over by the 1972 selection board and he was not fairly considered for promotion by that board as well. The Correction Board’s failure to remove the passovers from his record was arbitrary, capricious, unsupported by substantial evidence, and contrary to law. The legal framework for this claim is largely governed by our recent decision in Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979). In Sanders this court held that an officer was entitled to be considered for promotion \"on the basis of a record which portrayed his service career on 'a fair and equitable basis’ as the statutes require. 10 U.S.C. §§3442(c), 8442(c).” Id. at 302, 594 F.2d at 814. See also Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383 (1975); Weiss v. United States, 187 Ct. Cl. 1, 408 F.2d 416 (1969). If such consideration was not had, the passover was of no effect and any separation predicated on such passover was illegal. To recover under this standard, it must be shown that there was prejudicial legal or factual error or injustice in the manner of the selection board’s consideration of plaintiff for promotion. Harmless error, however, that was unrelated to an officer’s nonselections will not warrant judicial relief. There is no doubt that plaintiff was not considered for promotion by the 1972 selection board in the manner required by law. His records contained at that time the two subsequently voided OERs which had been excised from his records by the Officer Personnel Records Review Board in response to plaintiffs petition alleging that the OERs were unjust and not truly representative of his performance. These OERs were lower than the immediately preceding and all following OERs and his average ratings and disturbed the picture of steady advancement" }, { "docid": "23555873", "title": "", "text": "to void either OER. On November 13, 1972, plaintiff filed an application with the Air Force Board for the Correction of Military Records (Correction Board) seeking the excision from his records of the two contested OERs and the two passovers resulting from the presence of these OERs and the absence of the missing OER. Under the direction of the Correction Board, the OPRRB reconsidered its decision as to the contested OERs, which decision was affirmed. By letter dated May 13,1974, the Correction Board denied all relief on the basis that the evidence did not support a finding of probable error or injustice. I Plaintiff seeks an order from this court directing the Secretary of the Air Force to void the two OERs covering the periods of May 16, 1970-October 15, 1970, and October 16, 1970-August 1, 1971, on the grounds that the OERs were unfair, inaccurate, and the product of personal animosity. These OERs, plaintiff argues, should not have been in his records before the two selection boards, and, hence, their actions were unlawful and plaintiff has not been properly relieved of active duty status. Plaintiffs allegations present a claim within the jurisdiction of this court. \"Regulations prescribe that OERs are to be objective and prepared in a certain way.” Sanders v. United States, 219 Ct. Cl. 285, 303, 594 F. 2d 804, 814 (1979). See also Air Force Regulation (AFR) 36-10 (Sept. 15, 1974). If OERs are not prepared in the manner required by law, they are not properly included in an officer’s records before selection boards. See Skinner v. United States, 219 Ct. Cl. 322, 594 F. 2d 824 (1979). Where an officer’s records before a selection board were prejudicially defective so that the officer was not considered for promotion in a fair and equitable manner and the error was not harmless, this court can and will grant relief. See, e.g., Sanders v. United States, supra; Skinner v. United States, supra. In this case, however, plaintiff must first show that the Correction Board’s, or the OPRRB’s, decision in failing to void the two contested OERs was arbitrary, capricious," }, { "docid": "11775714", "title": "", "text": "grade of staff sergeant. He retired in November 1977. After the decision of the 1973 selection board, plaintiff amended his petition before the Correction Board asking for the removal from his records of the second passover. On April 24, 1973, the Correction Board denied his application simply stating that \"a careful consideration of your military record, together with such facts as have been presented by you, fails to establish a showing of probable error or injustice in your case.” Plaintiff petitioned this court for relief on July 11, 1973. On August 15, 1975, the court remanded the case to the Correction Board for development of the facts to show the basis of the board’s conclusion. In an opinion dated October 20, 1975, the Correction Board sustained its denial of all relief. Plaintiff asserts that his passovers by the 1972 and 1973 selection boards were unjust and unlawful, and, therefore, his separation predicated on these two passovers was illegal. The 1972 selection board’s decision was without effect in his case, he alleges, because of the presence in his records before the 1972 selection board of the two subsequently voided, prejudicial OERs, and he was therefore not fairly considered for promotion. Further, despite the fact that these OERs were not in his records before the 1973 selection board, that board did have before it the prejudicial fact that plaintiff had been passed over by the 1972 selection board and he was not fairly considered for promotion by that board as well. The Correction Board’s failure to remove the passovers from his record was arbitrary, capricious, unsupported by substantial evidence, and contrary to law. The legal framework for this claim is largely governed by our recent decision in Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979). In Sanders this court held that an officer was entitled to be considered for promotion \"on the basis of a record which portrayed his service career on 'a fair and equitable basis’ as the statutes require. 10 U.S.C. §§3442(c), 8442(c).” Id. at 302, 594 F.2d at 814. See also Yee v. United States," }, { "docid": "22822205", "title": "", "text": "think this was the kind of error and injustice that cried aloud for relief and that Congress had in mind when creating correction boards. Otherwise, the integrity of the promotion system is seriously compromised. Plaintiff was not rated on the merits of his performance as an officer of the United States Air Force. He had a legal right to be so graded on a \"fair and equitable” basis and to have his proper rating considered by selection boards. 10 U.S.C. §§ 3442(c), 8442(c). Defendant’s failure to follow the statutes and its published procedures is reversible for legal error where those procedures are required and their violation is substantial and prejudicial. Cruz-Casado v. United States, 213 Ct. Cl. 498, 553 F.2d 672 (1977); Borgford v. United States, 208 Ct. Cl. 1040 (1976); Bray v. United States, 207 Ct. Cl. 60, 515 F.2d 1383 (1975). The Correction Board brushed the case aside with the simple explanation that plaintiff had \"not submitted sufficient evidence to establish a showing of probable error or injustice in the case.” We find this incredible in view of the record the board had before it. We note that plaintiffs performance subsequent to the challenged OERs was so absolutely superior and outstanding that he was rated 9/4 on two occasions and was made chief of the Learning Center for T-38 aircraft. But, this all came too late to save his career. Reasons which wrecked it were not stated by the rater and indorser as the AFM required. Further, Colonel Mendel, who expressed dismay that plaintiff was not promoted, states in a letter, which is a part of the court record in this case, that \"I cannot recall any direct conversation with Colonel Smith or Colonel McVeigh or anyone else about what specific rating should be given to Major Skinner, but I may have done so.” He says, \"I am reasonably sure that the subject of Major Skinner ducking a check-ride was not discussed.” He concludes: \"I hope this provides you the information you are looking for, and that Major Skinner is able to use it to continue his fine" }, { "docid": "21311763", "title": "", "text": "that the OER was \"unfair and unjust” and \"prejudicial” and that the record did not disclose any factor other than the challenged OER that might have caused plaintiffs passovers by the 1972 and 1973 permanent major selection boards. In this connection he noted the correction board’s own statement that the weak OER \"may have been the determining factor for his non-selection.” Upon these determinations the trial judge reached this conclusion: \"Therefore, legal error was committed when the 1972 and 1973 permanent major selection boards based their pass-overs of the plaintiff on records which contained the unfair and unjust OER for the period from November 17, 1967, through February 20, 1968.” [Emphasis supplied.] The trial judge has recommended that the court award plaintiff back pay for active duty he would have performed had he not been illegally discharged, for back retired pay, and for the correction of his records to remove the contested OER and passovers. Promotion, of course, was correctly denied as beyond the court’s jurisdiction. The trial judge has repeatedly referred to the result in plaintiffs case before the correction board and selection boards as \"unfair and unjust,” i.e., an \"injustice” which he equates with legal error, as shown by the above quotation from his opinion. He cites just two cases in support of this proposition. Riley v. United States, 221 Ct. Cl. 308, 313, 608 F.2d 441, 443 (1979), and Skinner v. United States, 219 Ct. Cl. 322, 330-31, 594 F.2d 824, 829 (1979). Those cases do not support the proposition that the court can overturn selection boards and correction boards because something that they have done or failed to do is simply \"unfair and unjust.” Those were cases in which pure legal error was committed and there are many cases proclaiming our jurisdiction to correct such errors. Capt. Riley was passed over for promotion because of two OERs which were voided by a review board. The correction board refused his request to remove the passovers. This was legal error because under the statutes, 10 U.S.C. §§ 3442(c), 8442(c) (1976), an officer is entitled to be considered on" }, { "docid": "21311766", "title": "", "text": "decided, the court en bane decided Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979). In that case there was also plain legal error. The correction board removed certain improper OERs from Capt. Sanders’ file but did not remove, as he requested, the passovers that they had occasioned. Had it done so, it was evident he would have been promoted because he was next in line for it. The court unanimously concluded that he had been discharged by reason of legal error. An officer is entitled to the pay of the position to which he was appointed until legally removed. 37 U.S.C. § 204 (1976). The Sanders court did not entirely rule out the possibility that somewhere down the road in the future there might be such an error or injustice so shocking to the conscience and ignored by a correction board that evidence could show it rose to the level of legal error necessary for the court to remedy it. As yet, the court has encountered no such cases, post Sanders and Skinner. One thing is clear, the court cannot itself correct a simple injustice or direct a correction board to do so, without the correction implementing a money judgment. Black v. United States, 223 Ct. Cl. 733 (1980). Correction boards have the authority by statute to remove or correct an error or injustice. 10 U.S.C. § 1552(a) (1976). The statute says: \"Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.” An example of the correction of an injustice may be illustrated, for instance, where the board orders a promotion or changes the character of a soldier’s discharge from dishonorable to honorable as a matter of clemency to correct a factual but not necessarily a legal error. The court cannot do this because it does not involve a monetary claim, but is equitable in nature. The court said in Sanders: * * * Once a plaintiff has sought relief from the Correction Board, such plaintiff is bound by that board’s determination unless he can" } ]

[ { "docid": "22462015", "title": "", "text": "true, as petitioners argue, that Tomanio did not involve a class action, nor did it present any claim that an established federal rule of decision governed the tolling of the statute of limitations, making resort to state law unnecessary. Petitioners contend that in American Pipe this Court “established a uniform federal procedural rule applicable to class actions brought in the federal courts.” Brief for Petitioners 13. In petitioners’ view, that federal rule encompasses two requirements: (1) the statute of limitations is tolled by the filing of an asserted class action, and (2) if class certification is subsequently denied because the asserted class is insufficiently numerous, then the limitations period has merely been suspended; it does not begin to run anew. Petitioners, respondents, and the Court of Appeals all agree that the statute of limitations was tolled during the period between the filing of Jose Ortiz Rivera’s action on behalf of the class on June 19,1978, and the District Court’s denial of class certification on August 21, 1978. We must examine the reasoning of American Pipe, however, to determine whether that decision embodies the second requirement that petitioners urge us to recognize. In American Pipe the Court held that the antitrust treble-damages claims asserted by a group of municipalities and other public agencies in Utah were not time-barred. Although the claims had arisen in the early 1960’s, they were not foreclosed by the 4-year period of limitations prescribed in §4B of the Clayton Act because the statute had been tolled on three successive occasions: from March 10, 1964, to June 19, 1964, while federal criminal charges were pending against the defendants; from June 23,1964, until May 24,1968, while a civil injunctive proceeding filed by the Federal Government was pending; and from May 13,1969, until December 4,1969, while a class action brought by the State of Utah was pending. During the two earlier periods when Federal Government litigation was pending, and for one year thereafter, the Clayton Act expressly provided for tolling of the uniform federal statute of limitations. The Court held that the subsequent class action had also tolled the statute" } ]

[ { "docid": "11358153", "title": "", "text": "record, reasonable minds may not differ that Ms. Sawtell knew or should have been aware the Pro-plast®/Teflon® caused her injury. There are no material facts in dispute; therefore, we affirm the district court's grant of summary judgment. II Ms. Sawtell next argues the running of the statute of limitations should have been tolled under the \"equitable tolling\" doctrine of American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), while a similar class action suit was pending in Minnesota. If the district court’s refusal to toll the statute of limitations resides in the grant of summary judgment, we review the refusal de novo. Phillips Petroleum Co. v. Lujan, 4 F.3d 858, 860 (10th Cir.1993). Discussing the “equitable tolling” doctrine in American Pipe, the Supreme Court sought to enhance judicial economy by eliminating the need to file duplicative or protective motions to intervene in class actions before the statute of limitations expired. 414 U.S. at 550-51, 94 S.Ct. at 764-65. The doctrine suspends application of the statute of limitations to putative class members while a decision on class certification is pending. Id. at 554, 94 S.Ct. at 766. Although the Court’s decision in American Pipe concerned only those who sought to intervene, the Court later broadened the “equitable tolling” doctrine to toll the statute of limitations for all potential class members. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 2395-96, 76 L.Ed.2d 628 (1983). The filing of a class action suit tolls the statute of limitations for all asserted class members, and the statute of limitations remains tolled “until class certification is denied.” Id. at 353-54, 103 S.Ct. at 2397-98. Between March 1989 and May 1990, three class action suits against Vitek and DuPont were filed in Minnesota. These class actions alleged personal injuries from Proplast®/Tef-lon® temporomandibular implants. The plaintiffs in each case moved for certification of a class consisting solely of persons who received the implants in Minnesota. The motions for class certification were denied in April and May 1990. Counsel for the Appellee argues American Pipe" }, { "docid": "23039795", "title": "", "text": "not usually enjoy the benefits of tolling for the period during which the action was pending. For example, a suit voluntarily dismissed under Federal Rule of Civil Procedure 41(a) is treated “as if it had never been filed,” and the statute of limitations is therefore not tolled during the pendency of such a case. Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2367 (2d ed.1995); Beck v. Caterpillar, Inc., 50 F.3d 405, 407 (7th Cir.1995). But see Irwin, 498 U.S. at 96, 111 S.Ct. 453 (noting that equitable tolling has been allowed when a claimant has filed a defective pleading during the limitations period). A somewhat different situation applies under Rule 23 for class actions. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” The rule of American Pipe appeared to apply only to purported members of the class who made timely motions to intervene after the trial court denied class certification. However, in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court extended the tolling rule of American Pipe to all members of the asserted class, including those who subsequently filed their own suits. Id. at 353-54, 103 S.Ct. 2392. American Pipe and Crown, Cork & Seal were not based on judge-made equitable tolling, but rather on the Court’s interpretation of Rule 23. In American Pipe, the Court explained that “[u]nder present Rule 23, ... the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.” American Pipe, 414 U.S. at 550, 94 S.Ct. 756. The Court then held that the class action suspended the statute of limitations for all asserted class members because the contrary approach “would frustrate the principal function of a" }, { "docid": "21610754", "title": "", "text": "members of an uncertified class and members of a certified class in determining the application of tolling principles. We begin with American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the two most prominent Supreme Court cases concerning tolling in connection with the denial of class certification. In American Pipe, the State of Utah timely filed a civil action against American Pipe, seeking class action status and describing the putative class; the suit was filed 11 days before the applicable statute of limitations ran. 414 U.S. at 542, 94 S.Ct. 756. The district court eventually determined that although the action met the Rule 23(a)(2)-(4) factors, it failed to meet Rule 23(a)(l)’s numerosity requirement; accordingly, the court entered an order denying class certification under Rule 23(c)(1). Id. at 543, 94 S.Ct. 756. Eight days after entry of the order, more than 60 former putative class members filed motions to intervene in the action as plaintiffs. Id. at 544, 94 S.Ct. 756. The district court denied their motions, reasoning that the filing of the purported class action had not tolled the statute of limitations with respect to putative class members because the class was never certified. Id. After the Ninth Circuit affirmed, the Supreme Court granted certiorari. In a matter of first impression, the Supreme Court closely examined the text and history of Rule 23, id. at 545-52, 94 S.Ct. 756, and determined that, “consistent with federal class action procedure ... commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. 756. Applying this rule, the Court explained that the one-year statute of limitations period, which had been tolled 11 days prior to its expiration by the filing of the suit, resumed when the district court denied certification. Id. at 561, 94 S.Ct. 756. Because the" }, { "docid": "22056172", "title": "", "text": "also that, if the RICO claims are governed by CPLR § 214(2)’s three-year limitations period, that period was likewise tolled. The district court ruled that there was no significant tolling of the statute. We agree with plaintiffs’ contentions, for when a federal court looks to state law to determine the most appropriate statute of limitations, it must also, so long as federal policy is not thereby offended, apply the state’s rules as to the tolling of the statute. Chardon v. Fumero Soto, 462 U.S. 650, 655-62, 103 S.Ct. 2611, 2615-19, 77 L.Ed.2d 74 (1983). New York law follows two tolling rules that are pertinent to this case. a. The Filing of a Prior Class Action In American Pipe & Construction Co. v. Utak, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed. 2d 713 (1974) (\"American Pipe”), in the context of a private action to enforce the federal antitrust laws, the Supreme Court approved the intervention of third parties on whose claims the statute of limitations would otherwise have run, on the ground that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766. The Court reasoned that tolling was necessary to further the purposes of Fed.R.Civ.P. 23’s provision for class actions, and that no injustice was done to the defendant, since the timely commencement of the class action against it provides adequate notice of the claims against it within the statutory period: The policies of ensuring essential fairness to defendants and of barring a plaintiff who “has slept on his rights,” ... are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Id. at 554-55, 94 S.Ct. at 766-67. The American Pipe tolling principle" }, { "docid": "4632396", "title": "", "text": "C.P.L.R. § 214(5), and two years in Virginia — the state in which Plaintiffs’ causes of action accrued. Va.Code Ann. § 8.01-243(A). Therefore, the Court applies the Virginia two-year statute of limitations to Plaintiffs’ claims. Plaintiffs do not contest that the Virginia two-year statute of limitations applies to their actions. Rather, in their joint opposition to Merck’s motion for summary judgment, Plaintiffs contend that all four cases were timely filed under American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), because the statute of limitations was tolled for roughly 28 months during the pendency of the Wolfe action before the Court declined to certify a class. Under the rule first articulated by the United States Supreme Court in American Pipe, the filing of a class action complaint “suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. 756. The Court believed a contrary holding “would deprive Rule 23 class actions of the efficiency and economy of litigation” as proposed class members would be inclined to file suit in the event the court later found the proposed class unsuitable. Id. at 553, 94 S.Ct. 756. The Court later expanded the American Pipe doctrine, holding that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied.” Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). The tolling issue is not as straight-forward as Plaintiffs suggest because the instant actions materially differ from American Pipe and Crown, Cork & Seal in two ways. Those cases involved a federal statute of limitations period on a federal cause of action whereas Plaintiffs in the instant action assert exclusively state law claims. As previously stated, it is accepted that a federal diversity court applies state law in determining whether a statute of limitations has been tolled. See In re Agent" }, { "docid": "18973977", "title": "", "text": "of limitations period was tolled. 4. American Pipe Tolling for Actions filed before Class Certification The Alaska Plaintiffs and Amici rely on the American Pipe tolling doctrine to extend Section 13’s statute of limitations period. The doctrine provides that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” American Pipe & Construe. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). The Court explained that A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. Id. at 553, 94 S.Ct. 756. The Court observed that under Rule 23, class actions are “designed to avoid, rather than encourage” repetitious filing. Id. at 550, 94 S.Ct. 756. American Pipe found equitable tolling appropriate precisely because it did not want to punish putative class members who had waited to file an action, as encouraged by Rule 23, and had relied, knowingly or not, on the class litigation only to find that the class was not certified and their time to file independent actions had expired. See 414 U.S. at 551, 94 S.Ct. 756. Although American Pipe itself tolled the statute of limitations only for those who moved to intervene after class certification had been denied, the Supreme Court later extended the doctrine to apply to class members who choose to file separate suits after class certification is denied. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). In Croum, Cork, the Court held that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class" }, { "docid": "13813785", "title": "", "text": "Relation back to add named plaintiffs in a class action suit is of particular importance because of the interests of the unnamed members of the class. Suppose Mr. X files a class action and after the statute of limitations has run the defendant settles with X. If a named plaintiff cannot be substituted for X with relation back to the date of the filing of the original complaint, the class will be barred from relief. That is the fate looming in Boxdor-fer if relation back is denied, and for all we know in Phillips as well for class members who own 1996 Ford models. Since, for this reason, Illinois in effect allows named plaintiffs to be substituted with relation back (“in effect” because the formal rule is that the filing of a class action tolls the statute of limitations for class members, so that they can if necessary be substituted for the named plaintiffs, without being barred by reason of the passage of time since the suit was filed), Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634, 645 (1977); Regnery v. Meyers, 287 Ill.App.3d 354, 223 Ill.Dec. 130, 679 N.E.2d 74, 81 (1997) (this is also the federal rule, American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.2002)), the addition of such plaintiffs in the two cases before us did not commence new suits. Remand was therefore required, as the district judges ruled. Affirmed" }, { "docid": "13358147", "title": "", "text": "S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that the commencement of a class action suit tolls the applicable statute of limitations for all class members who make timely motions to intervene upon denial of certification. The Court tolled the statute of limitations because class actions are designed to “avoid, rather than encourage, unnecessary filing of repetitious papers and motions,” 414 U.S. at 550, 94 S.Ct. 756, and because the “policies of ensuring essential fairness to defendants and of barring a plaintiff who has slept on his rights, are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” 414 U.S. at 554-55, 94 S.Ct. 756 (citations omitted). In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350-52, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court extended the tolling of the statute of limitations to those bringing individual actions after class certification is denied, and to those electing to opt out of the class action to file individual claims. In his concurrence, however, Justice Powell cautioned that, “[t]he tolling rule of American Pipe is a generous one, inviting abuse[,]” and it “should not be read ... as leaving a plaintiff free to raise different or peripheral claims following denial of class status.” 462 U.S. at 354, 103 S.Ct. 2392 (Powell, J„ concurring). In this case, Weston’s claim is barred by the TILA’s one-year statute of limitations. Under American Pipe, the statute of limitations for putative class members of the original class is tolled only for substantive claims that were raised, or could have been raised, in the initial complaint. The Dres-sels’ initial complaint alleged solely state law violations. The state circuit court denied the Dressels’ request to amend their complaint to assert a TILA claim because the applicable statute of limitations had run when the Dressels filed their initial complaint. Thus, the state" }, { "docid": "11360205", "title": "", "text": "filing before the deadline. Joseph, 223 F.3d at 1166. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the Supreme Court held that “litigation ... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation” of § 10(b). The three-year period is a statute of repose. The high court further held that equitable tolling does not apply to statutes of repose. Id. at 363, 111 S.Ct. 2773. Under the class action tolling doctrine established in American Pipe and Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (“the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action”), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 352-55, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the filing of a class action under Fed.R.Civ.P. 23 legally tolls any applicable statute of limitations or statute of repose for all putative members of the potential class when an action is commenced and a motion for class certification is pending, up to the point that the court denies class certification, at which juncture the tolling ends and the plaintiffs, to protect their interests, may file individual suits. See also Calderon v. Presidio Valley Farmers Ass’n, 863 F.2d 384 (5th Cir.1989) (statute of limitations begins to run from the date the district court denied class certification, notwithstanding subsequently filed class actions, motions to intervene or appeals of the class certification ruling), cert. denied, 493 U.S. 821, 110 S.Ct. 79, 107 L.Ed.2d 45 (1989). The rationale for allowing legal tolling is to dissuade every potential class member from filing a separate action, resulting in a multiplicity of suits and judicial inefficiency and lack of litigation economy, which would defeat the goals of Rule 23; moreover, “the notice and opt-out provision of Rule 23(c)(2) would be irrelevant without tolling because" }, { "docid": "13347176", "title": "", "text": "a defendant on notice of his or her injury, regardless of whether the plaintiff himself is aware that he has suffered an injury. The filing of a class action, which is the only conduct that can trigger American Pipe tolling, accomplishes the exact same goal, rendering the statute of repose superfluous for the period of time that the class action is pending---- In contrast to legal tolling, equitable tolling would frequently work to frustrate statutes of repose by extending the time in which a plaintiff could file suit without providing the defendants with any notice of the potential claims against them. Id. at 177 (emphasis added). 2. There also is support for the contrary proposition — that American Pipe tolling is equitable. Indeed, the Supreme Court indicated that, in fashioning the existing rule, it took into account traditional equitable considerations. The Court noted that, in the case before it, certification had not been denied “for reasons of bad faith or frivolity,” but for lack of numerosity. American Pipe, 414 U.S. at 553, 94 S.Ct. 756 (internal quotation marks omitted). Furthermore, the Court observed that, “[i]n recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new ground.” Id. at 558, 94 S.Ct. 756 (emphasis added). Among the examples of the Court’s prior invócation of this power were “cases where the plaintiff ha[d] refrained from commencing suit during the period of limitation because of inducement by the defendant ... or because of fraudulent concealment,” id. at 559, 94 S.Ct. 756 (internal citation omitted), in other words, cases involving equitable tolling. Equitable considerations also prompted the three concurring Justices in Crown, Cork to issue the following caution: It seems important to reiterate the view expressed by Justice BLACKMUN in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 [94 S.Ct. 756, 38 L.Ed.2d 713] (1974). He wrote that our decision “must not be regarded as encouragement to lawyers in a case of this kind to frame their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on" }, { "docid": "11360204", "title": "", "text": "and the application of reliance where the alleged wrongful conduct is nonrepresentational under Rule 10b-5(a) and (c), illuminating and helpful and hereby adopts its approach. C. Limitations and Tolling regarding § 12(a)(2) Claims The Financial Institutions have blurred the distinction between legal tolling under the class action tolling doctrine and equitable tolling or the fraudulent concealment doctrine; they refer to both as equitable tolling. They are not the same. See, e.g., Joseph v. Wiles, 223 F.3d 1155, 1166-68 (10th Cir.2000); Ballard v. Tyco Int’l Ltd., No. MDL 02-MD-1335-PB, Civ. 04-CV-1336-PB, 2005 WL 1683598, *7 (D.N.H. July 11, 2005); In re Discovery Zone Sec. Litig., 181 F.R.D. 582, 600 (N.D.Ill.1998); Salkind v. Wang, No. Civ. A. 93-10912-WGY, 1995 WL 170122, *2-3 (D.Mass. Mar.30, 1995); Mott v. R.G. Dickinson and Co., No. 92-1450-PFK, 1993 WL 63445, *5 (D.Kan. Feb.24, 1993); In re Activision Sec. Litig., No. C-83-4639(A)MHP, 1986 WL 15339, *2-5 (N.D.Cal. Oct.20, 1986). Equitable tolling may be applied where a plaintiff timely files a defective pleading or has been tricked by his opponent’s misconduct into not filing before the deadline. Joseph, 223 F.3d at 1166. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the Supreme Court held that “litigation ... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation” of § 10(b). The three-year period is a statute of repose. The high court further held that equitable tolling does not apply to statutes of repose. Id. at 363, 111 S.Ct. 2773. Under the class action tolling doctrine established in American Pipe and Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (“the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action”), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 352-55, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the filing of" }, { "docid": "2028105", "title": "", "text": "Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (footnote omitted). The Court later clarified that tolling applied not only to intervenors, but also to putative class members who file actions of their own. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983) (Crown). The district court concluded, and the parties agree, that because WPMC’s claims are based on Ohio law, Ohio’s tolling principles govern. See, e.g., Hemenway v. Peabody Coal Co., 159 F.3d 255, 265 (7th Cir.1998). The Ohio Supreme Court has adopted class action tolling, in reliance on the reasoning of American Pipe and Crown, holding that “the filing of a class action, whether in Ohio or the federal court system, tolls the statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160, 163 (2002). Given the reliance on the Supreme Court’s decisions and the dearth of Ohio court decisions, the district court and the parties looked to federal class action principles for guidance in applying class action tolling. 1. Telxon Class Action The first principle of significance to this case is that the class action must afford the defendant with adequate notice. In American Pipe, the Court explained that policies of ensuring essential fairness to defendants and of barring a plaintiff who “has slept on his rights” ... are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. 414 U.S. at 554-55, 94 S.Ct. 756. A caution was noted by Justice Powell that “[w]hen thus notified, the defendant normally is not prejudiced by tolling of the statute of limitations. It is important to make certain, however, that American Pipe is not" }, { "docid": "21091349", "title": "", "text": "statute of limitations. As held in Wade v. Danek Medical, Inc., 182 F.3d 281, 289 (4th Cir.1999), when a state statute of limitations applies in a diversity case, so too does the state rule regarding equitable tolling. Accordingly, it is not enough merely to cite to American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), a case applying a class action tolling rule to a federal statute of limitations. Rather, Plaintiffs must establish that Maryland would apply that doctrine to the facts of this case. Plaintiffs suggest that this type of tolling “is consistent with Maryland State law.” citing to Furst v. Isom, 85 Md.App. 407, 584 A.2d 108 (1991). That case, however, dealt with a very different problem. Plaintiffs had filed the identical claim, but it was dismissed. When they tried to file a second claim, they were faced with the statute of limitations problem. There, it was deemed unfair to require a plaintiff to file a protective second suit while the first was pending. The court expressly did not adopt any theory of “equitable tolling,” Id. at 112. In making the appropriate analysis with respect to Virginia, the Fourth Circuit concluded that, inasmuch as very few states had adopted “cross-jurisdictional” equitable tolling and there are strong policy arguments against adopting it, Virginia would not adopt a rule of class action tolling. 182 F.3d at 287. In Maryland, also, there is no case directly addressing the issue, but what precedents there are, augur against its adoption. See, e.g., Hecht v. Resolution Trust Corp., 333 Md. 324, 635 A.2d 394, 399 (1994). Indeed, the existence of Rule 2-101(b), which provides a limited savings window if an identical action is dismissed by another court, clearly indicates the absence, under Maryland law, of the broad, cross-jurisdictional class action equitable tolling advocated by plaintiffs. Conclusion In sum, Plaintiffs were in possession of sufficient information at the time the insurance policies were issued to have discovered all of the alleged claims. Nothing that happened thereafter served to toll the running of the period of limitations. By" }, { "docid": "13347177", "title": "", "text": "(internal quotation marks omitted). Furthermore, the Court observed that, “[i]n recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new ground.” Id. at 558, 94 S.Ct. 756 (emphasis added). Among the examples of the Court’s prior invócation of this power were “cases where the plaintiff ha[d] refrained from commencing suit during the period of limitation because of inducement by the defendant ... or because of fraudulent concealment,” id. at 559, 94 S.Ct. 756 (internal citation omitted), in other words, cases involving equitable tolling. Equitable considerations also prompted the three concurring Justices in Crown, Cork to issue the following caution: It seems important to reiterate the view expressed by Justice BLACKMUN in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 [94 S.Ct. 756, 38 L.Ed.2d 713] (1974). He wrote that our decision “must not be regarded as encouragement to lawyers in a case of this kind to frame their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on their rights.” Id. at 561 [94 S.Ct. 756] (concurring opinion). The tolling rule of American Pipe is a generous one, inviting abuse. It preserves for class members a range of options pending a decision on class certification. The rule should not be read, however, as leaving a plaintiff free to raise different or peripheral claims following denial of class status. 462 U.S. at 354, 103 S.Ct. 2392 (Powell, J., concurring) (parallel citations omitted). Furthermore, in circumstances where the distinction between legal and equitable tolling was not dispositive, courts regularly have referred to American Pipe tolling as “equitable.” See supra note 10; Bridges, 441 F.3d at 211 (characterizing the rule of American Pipe/Crown, Cork as an “equitable tolling rule”); Ellis v. City of San Diego, Cal., 176 F.3d 1183, 1189 n.3 (9th Cir.1999) (citing American Pipe in support of the proposition that “[e]quitable tolling of the statute of limitations is a defense to all federal statutes of limitations, even those expressly contained within a given cause of action, unless tolling would be inconsistent with the legislative" }, { "docid": "17137368", "title": "", "text": "repose period ran out on May 21, 1990. Mr. Joseph’s action was timely filed only if the repose period was tolled. Mr. Joseph contends that either the filing of the May 9, 1989 class action complaint in California state court, or the October 4, 1989 filing of the Coordinated Amended Complaint in federal district court in Colorado, tolled the repose period for his section 11 claim. Defendants disagree, relying heavily on Lampf v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), and Anixter v. Home-Stake Prod. Co., 939 F.2d 1420, 1434-35 (10th Cir.1991), vacated on other grounds sub nom. Dennler v. Trippet, 503 U.S. 978, 112 S.Ct. 1658, 118 L.Ed.2d 382 (1992), which hold that equitable tolling does not apply to statutes of repose. Lampf and Anixter are not relevant in the present context because the tolling that Mr. Joseph seeks is legal rather than equitable in nature. Equitable tolling is appropriate where, for example, the claimant has filed a defective pleading during the statutory period, see Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 434-36, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), or where the plaintiff has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass, see Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). In contrast, the tolling Mr. Joseph claims is the legal tolling that occurs anytime an action is commenced and class certification is pending. Cf. Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (tolling no longer appropriate after court ruled definitively to deny class certification). The Supreme Court addressed this type of tolling in American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), where it held in the context of a statute of limitation that “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553," }, { "docid": "22181959", "title": "", "text": "began to run with the March 15 denial of class certification in Brown. Since the plaintiffs filed their complaints with their EEO counselor in July, they were out of time. The court also held, however, that the thirty day requirement is not jurisdictional and is subject to equitable tolling. Id. at 693-94. In a later unreported decision filed on February 27, 1987, the district court held that the plaintiffs had not established facts to support a finding that equitable tolling should be applied to extend the time in which they could have filed their individual administrative complaints. The district court then dismissed the action with prejudice, and this appeal followed. II. A. The district court was clearly correct in holding that pendency of the Luevano and Brown class actions tolled the limitations periods for the plaintiffs’ individual claims. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court stated the rule that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted). Later the Court applied this rule in a Title VII case and clarified the duration and effect of the tolling. Crown, Cork & Seal Co. v. Parker, 462 U.S. 346, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). There the Court stated that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. at 2397-98 (emphasis added). B. We also agree with the district court’s conclusions concerning the plaintiffs’ attempt to gain classwide relief. The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations" }, { "docid": "13347171", "title": "", "text": "held that American Pipe tolling is not equitable, but legal. In Joseph v. Wiles, 223 F.3d 1155 (10th Cir.2000), for example, the court considered whether the filing of a class action tolled the three-year statute of repose for securities fraud under 15 U.S.C. § 77m. Relying on Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the defendants argued that American Pipe could not be invoked to toll the three-year statute of repose. The Tenth Circuit, however, held that Lampf was not relevant in the present context because the tolling that Mr. Joseph seeks is legal rather than equitable in nature. ... [T]he tolling Mr. Joseph claims is the legal tolling that occurs any time an action is commenced and class certification is pending. Cf. Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (tolling no longer appropriate after court ruled definitively to deny class certification). The Supreme Court addressed this type of tolling in American Pipe & Const. Co. v. Utah, 414 U.S. 538 [94 S.Ct. 756, 38 L.Ed.2d 713] (1974), where it held in the context of a statute of limitation that “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553 [94 S.Ct. 756]. The Court expanded this rule in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 [103 S.Ct. 2392, 76 L.Ed.2d 628] (1983), to include putative class members who later seek to file independent actions. See id. at 353-54 [103 S.Ct. 2392] (statute of limitations remains tolled for all members of putative class until class certification is denied). Lampf did not over rule or even mention these cases, and we are not persuaded the three are incompatible. In fact, Lampf states that the “litigation ... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation,” indicating that the commencement of" }, { "docid": "4819907", "title": "", "text": "and distinct injury and occurred at a later date than the fibromyalgia. Item 30, p. 26. In Humphreys v. Humphreys, 949 F.Supp. 1014, 1020 (E.D.N.Y.1997), the District Court granted summary judgment on statute of limitations grounds because plaintiffs allegations were unsupported by evidence that the two sets of injuries were unrelated. For these reasons, the court finds the second injury rule does not apply to extend the statute of limitations. c. Class-Action Tolling On December 30, 1993, a class action suit against Sofamor, S.N.C., entitled Zampirri v. Sofamor, S.N.C., 93-CV 7074 (E.D.Pa.), was filed in federal district court. Item 20, Exh. 29. Plaintiffs claim Mrs. Prohaska “was a putative member of the class.” Item 30, p. 24. Class certification was denied on February 22, 1995. Item 20, Exh. 30. Orthopedic Bone Screw Products Liability Litigation, MDL1014, 1995 WL 273597 (E.D.Pa. Feb. 22, 1995). Plaintiffs contend that the class action rule tolls the statute of limitations from the time of filing until the resolution of a motion for class certification, and cite American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); and Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), in support of their position. American Pipe stands for the proposition that “the commencement of the original class suit tolls the running of the statute [of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” American Pipe, 414 U.S. at 553, 94 S.Ct. 756. Crown Cork expanded the rule in holding that “the filing of a class action tolls the statute of limitations as to all asserted members of a class whether they choose to intervene or file ‘individual actions’ following the denial of class certification.” Korwek v. Hunt, 827 F.2d 874, 877 (2d Cir.1987). Defendants proffer two arguments against class-action tolling: (1) in diversity cases, under Erie v. Tompkins, state statutes of limitations, not federal class-action tolling rules, apply, and (2) even if class- action" }, { "docid": "23039794", "title": "", "text": "States, 142 F.3d 1459, 1461-63 (Fed.Cir.1998) (rejecting equitable tolling in tax refund case of limitations period specified in 26 U.S.C. § 6532(a)). Here, however, we need not decide the difficult question concerning the scope of judge-made equitable tolling doctrines because the tolling here is mandated by statute. On their face, neither Rule 23 of the Federal Rules of Civil Procedure nor the corresponding Rule 23 of the Court of International Trade (which is applicable here) tolls the statute of limitations. But Rule 3 of the Federal Rules of Civil Procedure and Rule 3 of the Court of International Trade do provide that an “action is commenced by filing a complaint.” It has long been held that, at least for federal causes of action, the result of Rule 3 is that the filing of a complaint stops the running of the statute of limitations. See Henderson v. United States, 517 U.S. 654, 657, 657 n. 2, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). However, in a non-class action, once a complaint is dismissed a plaintiff does not usually enjoy the benefits of tolling for the period during which the action was pending. For example, a suit voluntarily dismissed under Federal Rule of Civil Procedure 41(a) is treated “as if it had never been filed,” and the statute of limitations is therefore not tolled during the pendency of such a case. Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2367 (2d ed.1995); Beck v. Caterpillar, Inc., 50 F.3d 405, 407 (7th Cir.1995). But see Irwin, 498 U.S. at 96, 111 S.Ct. 453 (noting that equitable tolling has been allowed when a claimant has filed a defective pleading during the limitations period). A somewhat different situation applies under Rule 23 for class actions. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue" }, { "docid": "300283", "title": "", "text": "of delay in payment of unpaid minimum wages, unpaid overtime compensation, liquidated damages or for legal or equitable relief for violations of section 215(a)(3) terminates the right to bring an action by or in behalf of an employee or to become a party plaintiff in an action under section 216(b). See 29 U.S.C. § 216(b). Because of these provisions in the remedial scheme and the purposes of statutes of limitations, the Secretary can benefit from the actions that the inspectors filed in courts which had jurisdiction at the time the inspectors’ complaints were filed but, for reasons external to the conduct of the inspectors and the Secretary, were ultimately determined not to have jurisdiction. As in Burnett, tolling “effectuates the basic congressional purposes in enacting this humane and remedial Act, as well as those policies embodied in the Act’s limitation provision.” Burnett, 380 U.S. at 427-28, 85 S.Ct. 1050 (applying equitable tolling to action under the Federal Employers’ Liability Act). The Supreme Court has recognized that statutes of limitations can be tolled for non-parties to a previous action by defective pleadings filed in that previous action. In 1974, the Supreme Court held that the commencement of a class action tolled the statute of limitations “for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Amer. Pipe and Constr. Co. v. Utah, 414 U.S. 538, 553, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). The purposes of statutes of limitations, the Court reasoned, were not frustrated by this holding: The policies of ensuring essential fairness to defendants and of barring a plaintiff who ‘has slept on his rights’ are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary" } ]

[ { "docid": "17748298", "title": "", "text": "v. Consolidated Mining Co., 102 U. S. 167 — followed in Mullan v. United States, 118 U. S. 271— and United States v. Sweet, 245 U. S. 563. In the Mining Co.. Case, in which it was held that a provision in the Act of 1853 for the sale of public lands in California, granting certain sections to the State for school purposes, was not intended tot, cover mineral lands, the decision was not based upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, -on the ground that the discovery in 1849 that California was rich in precious metals, bring- . ing its mineral lands to the attention of Congress, had led to the adoption in reference to that State of a local policy, plainly manifested in other provisions of the Act making specific exceptions of mineral lands, by which, unlike the ordinary laws for disposing of public lands in agricultural States, the mineral lands in that State were uniformly reserved from sale, preemption and grants for public purposes (pp. 172-175); In the Sweet Case it was held that the provision of the Utah Enabling Act of 1894, granting to the State certain sections of the public lands for the support of common schools, with no mention of mineral lands, was not intended to embrace land known to be valuable for coal. The grounds of this decision were that long prior to the Act there had been established a settled policy in respect of mineral lands, evidenced by the mining laws and other statutes, by which they were withheld from disposal save under laws especially including them; and that read in the light of such laws and settled public policy the Act did not disclose' a purpose to include such lands in the school grant, since, although couched in general terms adequate to embrace them if there were no statute or settled policy to the contrary, it contained no language explicitly withdrawing the school sections, where known to be mineral in character, from the operation of the" } ]

[ { "docid": "18177135", "title": "", "text": "exclusion to be read into a general land grant was established by Congress between 1850 and the date of the Gerard Act, 1855. In thirty-two private land grant acts of Congress, between 1845 when the Gerard Act was introduced and 1855 when it became law, Congress expressly excluded mineral lands in one and not in the others, thus demonstrating that it intended to deal with each land grant separately, i.e. without a settled policy. Therefore, if Congress had intended to exclude mineral lands in the Gerard Act it would have done so express^ ly. The Act of July 26, 1866 did not establish a settled policy to reserve mineral lands to the United States but on the contrary made' them free and open to exploration. And whether or not the Act of 1866 established a general policy for the disposal of mineral lands, the Gerard Act is an exception because the Act of 1866 applies to lode, not placer, claims. It is ruled in Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), that Section 2319 of the Revised Statutes applies only where the United States has indicated thai lands are held for disposal under the land laws, not where the United States directs disposition under “other laws”. The Gerard Act is an “other law”. Neither the Act of March 3, 1853, involved in the Ivanhoe Mining Company case, nor the Act of July 26, 1866, established a policy to dispose of mineral lands only under statutes dealing expressly with them. Nothing in the Gerard Act or in its legislative history indicates an intention on the part of Congress to exclude mineral lands. The Committee on Claims of the 33d Congress recommended that the Gerard Act limit selection to four states (Ohio, Michigan, Indiana, Illinois). ■ Congress, in enacting the bill which became the Gerard Act, struck out this proposed provision; hence selection was left open under the Gerard Act in all states. (6) Land granted by way of reward for military service can not be said to have been sold. Five Per Cent. Cases (Iowa" }, { "docid": "18177090", "title": "", "text": "the uniform policy of the Congress, at and prior to the date of the Act, to exclude mineral lands from disposal under all non-mineral land laws, Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ed. 126 (1880), and administrative practice has accorded with that policy. Therefore, location under the Gerard Act prior to the Act of July 17, 1914, 38 Stat. 509, 30 U.S.C.A. § 121 et seq., was limited to surveyed public lands, non-mineral in character. Little Placer, the tract applied for, was withdrawn from settlement, location — including scrip location — sale or entry, and reserved for classification by Executive Order No. 6910 of November 26, 1934, and is therefore subject to location only if classified by the Secretary of the Interior under Section 7 of the Taylor Grazing Act, as amended, 43 U.S.C.A. § 315f, as being proper for acquisition and satisfaction of outstanding scrip rights. While the Act of July 17, 1914, as supplemented by the Act of March 4, 1933, 47 Stat. 1570, 30 U.S.C.A. § 124, authorized the disposal under the non-min eral public land laws of lands withdrawn or classified as valuable for phosphate, nitrate, potash, oil, gas, asphaltic or sodium minerals, the supplementing Act of March 4, 1933 provides that lands withdrawn, classified or reported as valuable for any of the minerals named shall not be subject to such disposal unless the Secretary of the Interior shall determine that it will not unreasonably interfere with operations under the federal mineral leasing laws. The Geological Survey had reported that information available to it indicated that unreasonable interference with operations under the sodium provisions of the Mineral Leasing Act would result from the disposal of the surface of the land under the non-mineral application. Therefore, the 1914 and 1933 Acts would not avail to remove the bar imposed by the construction and administration of the Gerard Act against the location of Gerard scrip on mineral land. Since the scrip application would have to be rejected on that ground, for that reason alone the tract sought, Little Placer, may not be" }, { "docid": "18177138", "title": "", "text": "public lands is not applicable. Also, the Leasing Act “does not declare that the minerals described therein, located in any particular State, cannot he selected in accordance with the terms and provisions of a previous grant of Congress i.e., the Gerard Act of 1855; nor that these minerals were reserved from previous grants.” And the imposition of such a limitation in 1947 (the year of the West Coast selection of Little Placer) would violate the due process clause of the Constitution. Even if the Gerard Act conflicted with the Leasing Act the former would control under the rule that a general act is not to be construed as applying to cases covered by a prior special act on the same subject. Rodgers v. United States, 185 U.S. 83, 89, 22 S.Ct. 582, 46 L.Ed. 816 (1902). Since the Gerard Act “created a present vested right, that is a grant of public land ‘ . . .in full payment for the patriotic services’ ”, when the land was identified by selection the title related back to the date of the original grant with the same effect as if selection had been made in 1855. West v. Lyders, 59 App.D.C. 122, 36 F.2d 108 (D.C.Cir.l929). This relation back cuts off the application of subsequent general legislation such as the Mineral Leasing Act. (8) The Act of March 2, 1899, 25 Stat. 854, 43 U.S.C.A. § 700, withdrawing from private entry all public lands except those in Missouri can not, because of the due process clause of the Constitution, cut down rights acquired under the Gerard Act. (9) The saving clause of Executive Order No. 6910 of November 26, 1934, “the withdrawal hereby effected is subject to existing valid rights”, preserves the rights of West Coast under the Gerard Act. Stockley v. United States, 260 U.S. 532, 43 S.Ct. 186, 67 L.Ed. 390 (1923), so rules with respect to an Executive Order of December 15, 1908, which saved “existing valid claims”; and the Secretary of the Interior (Chapman) so ruled in the Santa Fe Pacific Railroad Company decision, 56 I.D. 376 (1938). Even" }, { "docid": "18177089", "title": "", "text": "of any consideration. Such certificates are commonly referred to in land law parlance as “scrip” and will, in this opinion, sometimes be so referred to. Thereafter William exchanged the special certificate for sixteen special certificates, each certifying the right of William to enter one-sixteenth of a section of the public lands without the payment of any consideration. By mesne conveyances West Coast acquired the ownership of one of the sixteen special certificates and thereunder, on March 14, 1947, selected Little Placer. The tract contained minerals, to wit, deposits of sodium borates and calcium borates. The selection was regularly filed with the Bureau of Land Management of the Department of the Interior at Los Angeles and was “accepted” by that Bureau. But the selection was later rejected by the Director of the Bureau at Washington in a decision of June 2, 1947. The rejection was upon —stating them in summary form — the following grounds: While the Gerard Act is silent with respect to the character of the land that may be located thereunder, it was the uniform policy of the Congress, at and prior to the date of the Act, to exclude mineral lands from disposal under all non-mineral land laws, Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ed. 126 (1880), and administrative practice has accorded with that policy. Therefore, location under the Gerard Act prior to the Act of July 17, 1914, 38 Stat. 509, 30 U.S.C.A. § 121 et seq., was limited to surveyed public lands, non-mineral in character. Little Placer, the tract applied for, was withdrawn from settlement, location — including scrip location — sale or entry, and reserved for classification by Executive Order No. 6910 of November 26, 1934, and is therefore subject to location only if classified by the Secretary of the Interior under Section 7 of the Taylor Grazing Act, as amended, 43 U.S.C.A. § 315f, as being proper for acquisition and satisfaction of outstanding scrip rights. While the Act of July 17, 1914, as supplemented by the Act of March 4, 1933, 47 Stat. 1570, 30 U.S.C.A. §" }, { "docid": "18177144", "title": "", "text": "until a definite mineral policy was' decided upon, and that a grant of sections 16 and 36, in each township, of the public lands to the State of California for school purposes did not cover mineral lands. United States v. Sweet, 245 U.S. 563, 38 S.Ct. 193, 62 L.Ed. 473 (1918), rules that the Utah Enabling Act of 1894 granting school sections to Utah, silent as to .minerals, did not pass mineral lands because at that time there had been established a general policy initiated in 1866 of disposing of mineral lands only under laws especially providing for their disposal. Under those authorities West Coast’s permissive right to enter did not include the right to enter mineral lands in California. The decision in Work v. Louisiana that the Act of March 2, 1849, granting swamp and overflowed lands to Louisiana did not exclude mineral lands, does not undermine the decisions in the Ivanhoe Mining Company and Sweet cases. The Supreme Court distinguished the Sweet case by pointing out that the Utah Enabling Act of 1894 was passed after the establishment long prior thereto of a settled policy in respect of mineral lands by which they were withheld from disposal save under laws expressly including them; and distinguished the Ivanhoe Mining Company ease by pointing out that that decision, involving the 1853 Act, was not upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, was upon the ground that the discovery in 1849 that California was rich in precious metals had led to the adoption by Congress, in reference to California, of a local policy “by which, unlike the ordinary laws for disposing of public lands in agricultural states, the mineral lands in that State were uniformly reserved from sale, preemption and grants for public purposes.” It has long been recognized by the commentators that mineral lands are not subject to scrip selection. I Lindley, Mines, § 211 (3rd Ed.1914); Ricketts, American Mining Law, Bulletin No. 123, California State Division of Mines, Vol. 1, Page 39. The rejection" }, { "docid": "18177143", "title": "", "text": "class of land the right to enter could be exercised upon. The Pre-emption Acts of 1841 and 1843 as construed by Northern Pacific Railway v. De Lacey, 174 U.S. 622, 19 S.Ct. 791, 43 L.Ed. 1111 (1899), demonstrate that “private entry” had no meaning in 1855 (the date of the Gerard Act) different from that which it had at the time of the Chotard decision in 1827. Con trary to the contention of West Coast, the legislative history- of the Gerard Act affirmatively shows that Congress used the word “enter” in the Chotard case sense. (2) Mineral land in California has never been subject to disposition except under laws expressly providing for disposal of such land. In the Act of March 3, 1853, 10 Stat. 244, considered in Ivanhoe. Mining Company v. Keystone Consolidated Mining Company, Congress extended to California the public sale and preemption acts but excepted mineral land from disposal. The Ivanhoe Mining Company case rules that the 1853 Act fixed a definite policy in California of withholding mineral land from all grants until a definite mineral policy was' decided upon, and that a grant of sections 16 and 36, in each township, of the public lands to the State of California for school purposes did not cover mineral lands. United States v. Sweet, 245 U.S. 563, 38 S.Ct. 193, 62 L.Ed. 473 (1918), rules that the Utah Enabling Act of 1894 granting school sections to Utah, silent as to .minerals, did not pass mineral lands because at that time there had been established a general policy initiated in 1866 of disposing of mineral lands only under laws especially providing for their disposal. Under those authorities West Coast’s permissive right to enter did not include the right to enter mineral lands in California. The decision in Work v. Louisiana that the Act of March 2, 1849, granting swamp and overflowed lands to Louisiana did not exclude mineral lands, does not undermine the decisions in the Ivanhoe Mining Company and Sweet cases. The Supreme Court distinguished the Sweet case by pointing out that the Utah Enabling Act of 1894" }, { "docid": "18177145", "title": "", "text": "was passed after the establishment long prior thereto of a settled policy in respect of mineral lands by which they were withheld from disposal save under laws expressly including them; and distinguished the Ivanhoe Mining Company ease by pointing out that that decision, involving the 1853 Act, was not upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, was upon the ground that the discovery in 1849 that California was rich in precious metals had led to the adoption by Congress, in reference to California, of a local policy “by which, unlike the ordinary laws for disposing of public lands in agricultural states, the mineral lands in that State were uniformly reserved from sale, preemption and grants for public purposes.” It has long been recognized by the commentators that mineral lands are not subject to scrip selection. I Lindley, Mines, § 211 (3rd Ed.1914); Ricketts, American Mining Law, Bulletin No. 123, California State Division of Mines, Vol. 1, Page 39. The rejection of the West Coast entry by the Secretary and the trial court conforms to a long and uniform administrative practice dating from 1880 and to the views of such text writers. (3) Even assuming that Little Placer was open to private entry, it was validly withdrawn from such entry both by Congress and Executive Order prior to 1947. (a) By the Act of March 2, 1889, 25 Stat. 854, Congress withdrew from private entry all lands of the United States except those in Missouri; and by the Act of May 18, 1898, 30 Stat. 418, 43 U.S.C.A. § 675, declared all public lands in Missouri open to sale and private entry regardless of whether such lands had been previously offered at public auction. One thousand and eight acres of public land were available to entry in Missouri in 1947 when West Coast made application to enter its scrip on Little Placer. The Gerard Act did not guarantee that any specific land would be made or kept available, and did not guarantee to deliver valuable mineral" }, { "docid": "18177210", "title": "", "text": "to the conclusion to report a bill authorizing each one of Gerard’s heirs, three in number, to enter one section of any of the public land open to private entry.” (33d Cong. 1st Session, Part 3, page 1732.) Even if the matter relied upon by West Coast were part of the true legislative history of the Gerard Act, it would not support the conclusion that West Coast draws from it. From the mere fact that a bill before the 30th Congress limiting selection to lands subject to, private entry failed of passage, West Coast appears to argue that Congress “turned it down” because it did not like the words “subject to private entry”. But the mere failure of a bill to pass does-not reveal the reason for its not passing. Moreover, the Senate never made any disclosure of its view with regard to the bill.It did not reject it. As West Coast’ states, the bill “died” in the Senate. The fact is it was never reached for consideration, so West Coast’s deduction from its mere failure of passage is unjustified. . Ivanhoe Mining Company v. Keystone. Consolidated Mining Company is stated in footnote 1. . In United States v. Sweet, Section 6 of the Utah Enabling Act of July 16, 1894, 28 Stat. 107, provided that upon the admission of the State into the Union “sections .numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State . . . are hereby granted to said State for the support of common schools . . . .” Thus the statute neither expressly included mineral lands nor expressly excluded them. In an action by the United States to quiet title to Section thirty-two of a designated township in a designated county in Utah as against a claim asserted by an as-signee of tho State under the school land grant, it appeared that the land in question was valuable for coal and had been known to be such since before admission of Utah to the Union. It was without dispute that land valuable for coal is mineral land within the meaning" }, { "docid": "18177132", "title": "", "text": "Heirs, 2 Wheat. 196, 4 L.Ed. 218 (U.S.1817); Leavenworth, etc., R. R. Co. v. United States, 92 U.S. 733, 23 L.Ed. 634 (1875). (3) The Gerard Act recognized an obligation arising out of a contract of April 7, 1792, made by the Government with Joseph Gerard pursuant to inducements held out by General Washington. The issuance of scrip under the Gerard Act constituted another binding contract. McGee v. Mathis, 4 Wall. 143, 18 L.Ed. 314 (U.S.1866); Payne v. Central Pac. Ry. Co., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 598 (1921). (4) Acquisition of lands by virtue of Gerard scrip is not limited to lands subject to private entry after first having been offered at public sale. Chotard v. Pope, 12 Wheat. 586, 6 L.Ed. 737 (U.S. 1827), is not controlling because the Willis Act therein considered refers to a “quantity” of land and the inquiry was as to what kind of land could be entered. The Gerard Act refers to “public lands”. The term “entry” as used in the Chotard case can not restrict the rights of a congressional grantee. United States v. Northern Pac. Ry. Co., 204 F. 485, 487 (C.C.D.Mont.1911); Northern Pac. Ry. Co. v. Sanders, 47 F. 604, 607 (C.C.D.Mont.1891). With the passage of the Preemption Act of 1841, 5 Stat. 453, as amended by the Act of March 3, 1843, 5 Stat. 619, the method of disposing of the public domain had so changed that the ruling in the Chotard case in 1827 could no longer be applied; and by 1855, the year of the passage of the Gerard Act, public lands subject to entry included unoffered as well as offered lands. The ruling in the Chotard ease was in effect modified by Northern Pacific Bailway v. De Lacey, 174 U.S. 622, 19 S.Ct. 791, 43 L.Ed. 1111 (1899). Private bills enacted during 1854 and 1855 demonstrate that Congress did not regard general grants of public lands as restricted to lands “open to private entry” for Congress, when it desired such a restriction, expressly used restrictive terms; this shows that Congress in 1855 regarded" }, { "docid": "18177196", "title": "", "text": "for cultivation”. The suit was by Louisiana to restrain the Secretary of the Interior from rejecting the State’s claim under the Act for lack of a showing that the lands were not mineral in character. It was urged in behalf of the Secretary that although the Act contained no express exception or reservation of mineral lands, such a reservation should be read into it by reason of a settled policy of the United States of withholding mineral lands from disposal except under laws expressly including them. The Court ruled that there was no such settled policy at the time of the enactment of the 1849 statute, and that the grant was in praesenti, giving the State an inchoate title to all of the swamp and overflowed lands, without, reference to their mineral character, which title became perfect as of the date of the Act when the granted land had been identified as required. In Work v. Louisiana the Court made the same ruling with reference to the Act of September 28, 1850, 9 Stat. 519, granting swamp lands to Arkansas. . Ivanhoe Mining Company v. Keystone Consolidated Mining Company is stated in footnote 1. . Section 2319 of the Revised Statutes, 30 U.S.C.A. § 22, provides: “All valuable mineral deposits in lands belonging to the United States, both surveyed and un-surveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining-districts, so far as the same are applicable and not inconsistent with the laws of the United States.” . In the Five Per Cent. Cases the Governors of Iowa and Illinois relied, respectively, upon the provisions of the Act of March 3, 1845, Chapter 76, 5 Stat. 789, and the Act of April 18, 1818, Chapter 67, 3 Stat. 428, relating to the admission of those states into the Union. The" }, { "docid": "18177133", "title": "", "text": "restrict the rights of a congressional grantee. United States v. Northern Pac. Ry. Co., 204 F. 485, 487 (C.C.D.Mont.1911); Northern Pac. Ry. Co. v. Sanders, 47 F. 604, 607 (C.C.D.Mont.1891). With the passage of the Preemption Act of 1841, 5 Stat. 453, as amended by the Act of March 3, 1843, 5 Stat. 619, the method of disposing of the public domain had so changed that the ruling in the Chotard case in 1827 could no longer be applied; and by 1855, the year of the passage of the Gerard Act, public lands subject to entry included unoffered as well as offered lands. The ruling in the Chotard ease was in effect modified by Northern Pacific Bailway v. De Lacey, 174 U.S. 622, 19 S.Ct. 791, 43 L.Ed. 1111 (1899). Private bills enacted during 1854 and 1855 demonstrate that Congress did not regard general grants of public lands as restricted to lands “open to private entry” for Congress, when it desired such a restriction, expressly used restrictive terms; this shows that Congress in 1855 regarded the Chotard case as not reflecting the law. The legislative history of the Gerard Act shows that Congress expressly declined to include therein the limitation “subject to private entry”. (5) The Gerard Act is not to be taken as ex- eluding mineral lands in California. Such lands can be selected there and in other states'under Gerard scrip. In 1850 there was no settled policy of Congress requiring a mineral reservation or exclusion to be read into a general land grant. Work v. Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259 (1925). There was no such policy in 1853, since Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ed. 126 (1880), which read a mineral land exclusion into the Act of March 3, 1853, 10 Stat. 244, recognized that there was no such policy until the Act of July 26, 1866, 14 Stat. 251, the ruling in the Ivanhoe Mining Company case being based upon the special terms of the 1853 statute. No settled policy requiring a mineral reservation or" }, { "docid": "18177092", "title": "", "text": "classified as proper for scrip location. After this rejection by the Director of the Bureau of Land Management, West Coast filed a motion for rehearing. On November 18, 1947, the Secretary of the Interior denied the motion — thereby affirming the Director’s rejection of the selection of Little Placer — in a decision the pertinent parts of which are the following: “West Coast contends that its Gerard scrip may be located on mineral lands and consequently that the act of March 4, 1933, is inapplicable to this situation. “Under the act of February 10, 1855, supra, Gerard scrip may be located on ‘the public lands.’ But as used in that act, the term ‘public lands’ does not include mineral lands in California. . . . The Supreme Court has held that an act granting sections 16 and 36 of the public lands to the State of California without specific exclusion therefrom of mineral lands, passed only 2 years prior to the Gerard scrip act, was nevertheless intended to exclude from its operation mineral lands. Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ud. 126 (1880). The Court discussed extensively the act there under consideration as well as other statutes enacted during the same period, reviewed the history of the settlement of California, the discovery of mineral wealth in that area, and the statutes and practices relating to the survey of these lands. It was concluded that “ ‘ * * *, Congress, after keeping this matter in abeyance about sixteen years, enacted, in 1866, 14 Stat. at L., 251, a complete system for the sale and other regulation of its mineral lands, so totally different from that which governs other public lands as to show that it could never have been intended to submit them to the ordinary laws for disposing of tlio territory of the United States.’ (102 U.S. 167, 174, 26 L.Ed. 126). “The Court’s reasoning and conclusions with respect to the statute there under consideration is equally applicable with respect to the question of -whether Gerard scrip may be located ..upon mineral lands" }, { "docid": "22423998", "title": "", "text": "sections any more than it is limited to § 3. The proviso makes sense if it is read to reserve all mineral rights under the right of way, as well as to reserve mineral lands in the alternate sections of public land granted in aid of the construction of the road. Indeed, we can see no other way to construe it if it is to apply, as it does, not merely to § 3, but to the entire Act, including § 2 which grants the right of way. The reservation of the mineral resources of these public lands for the United States was in keeping with the policy of the times. The gold strike in California in 1848 made the entire country conscious of the potential riches underlying the western part of the public domain. The method of asserting federal control over mineral lands was not finally settled until the Act of July 26, 1866, 14 Stat. 251, prescribed the procedure by which mineral lands could be acquired. But meanwhile — from 1849 to 1866 — the federal policy was clear. As the Court said in Mining Co. v. Consolidated Mining Co., 102 U. S. 167, the federal policy during this interim period was to reserve mineral lands, not to grant them. The policy was found to be so “uniform” in this interim period (id., at 175) that the Court, in construing an 1853 Act governing public lands in California, held that a grant to California did not include mineral lands, although they were not specifically excepted. The case is much stronger here, for “mineral lands” are specifically reserved. It is, therefore, wholly in keeping with the federal policy that prevailed in 1862, when the present right of way was granted, to construe “mineral lands” to include mineral resources under the right of way. For it was the mineral riches in the public domain that Congress sedulously sought to preserve until it formulated the special procedure by which all mineral resources were to be administered. In United States v. Sweet, 245 U. S. 563, Mr. Justice Van Devanter, our foremost" }, { "docid": "18177142", "title": "", "text": "subject to entry under Gerard Act scrip. The land in question has never been publicly offered for sale or open to private entry; and Chotard v. Pope, 12 Wheat. 586, 6 L.Ed. 737 (U.S.1827), construing the Willis Act of 1820, which allowed Willis to “enter” lands of the United States, rules that only lands remaining available for private sale after first having been offered at public auction can he entered. The Chotard ease stands as present law, having been cited by the Supreme Court in Eldred v. Sexton, 19 Wall. 189, 195, 196, 22 L.Ed. 146 (U.S.1873), and is not distinguishable from the instant case because the Willis Act refers to “land” and the Gerard Act to “public land”. If there is a difference the Willis Act is the broader. The point to be decided in the Chotard case was not and in the instant case is not whether claimants under the parallel statutes involved in the two cases acquired a right to enter public land, or what acts would constitute an entry, but what class of land the right to enter could be exercised upon. The Pre-emption Acts of 1841 and 1843 as construed by Northern Pacific Railway v. De Lacey, 174 U.S. 622, 19 S.Ct. 791, 43 L.Ed. 1111 (1899), demonstrate that “private entry” had no meaning in 1855 (the date of the Gerard Act) different from that which it had at the time of the Chotard decision in 1827. Con trary to the contention of West Coast, the legislative history- of the Gerard Act affirmatively shows that Congress used the word “enter” in the Chotard case sense. (2) Mineral land in California has never been subject to disposition except under laws expressly providing for disposal of such land. In the Act of March 3, 1853, 10 Stat. 244, considered in Ivanhoe. Mining Company v. Keystone Consolidated Mining Company, Congress extended to California the public sale and preemption acts but excepted mineral land from disposal. The Ivanhoe Mining Company case rules that the 1853 Act fixed a definite policy in California of withholding mineral land from all grants" }, { "docid": "18177136", "title": "", "text": "771 (1922), that Section 2319 of the Revised Statutes applies only where the United States has indicated thai lands are held for disposal under the land laws, not where the United States directs disposition under “other laws”. The Gerard Act is an “other law”. Neither the Act of March 3, 1853, involved in the Ivanhoe Mining Company case, nor the Act of July 26, 1866, established a policy to dispose of mineral lands only under statutes dealing expressly with them. Nothing in the Gerard Act or in its legislative history indicates an intention on the part of Congress to exclude mineral lands. The Committee on Claims of the 33d Congress recommended that the Gerard Act limit selection to four states (Ohio, Michigan, Indiana, Illinois). ■ Congress, in enacting the bill which became the Gerard Act, struck out this proposed provision; hence selection was left open under the Gerard Act in all states. (6) Land granted by way of reward for military service can not be said to have been sold. Five Per Cent. Cases (Iowa v. McFarland and Illinois v. McFarland), 110 U.S. 471, 4 S.Ct. 210, 28 L.Ed. 198 (1884). Therefore selection under the Gerard Act can be made without reference to Section 2318 of the Revised Statutes, 30 U.S.C.A. § 21, providing that “in all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.” (7) The Mineral Leasing Act of February 25. 1920, providing, inter alia, for the disposition by lease of deposits of sodium in lands belonging to the United States, does not foreclose the selection of Little Placer under the Gerard Act; the grant under the latter Act is sufficiently comprehensive to include mineral lands. Moreover, the rights of West Coast are not the general statutory rights of a member of the public; they are special rights under a special grant. The claim of West Coast is to a fee simple in a designated tract of public lands; statutory procedure prescribed for persons seeking to negotiate for a lease or permit relating solely to mineral rights in the" }, { "docid": "18177195", "title": "", "text": "language such as ‘subject to private entry’. “The second Gerard bill, H.R. Ill, 30th Congress, 1st Session, was committed to the House of Representatives on January 24, 1848, without a clause limiting selection to ‘land subject to private entry’ (The Congressional Globe, Vol. 19, p. 237). “On May 26, 1848, the Committee of the Whole House considered the bill and amended it before its passage by the House (The Congressional Globe, Vol. 19, p. 787). “The House Bill as amended was passed and sent to the Senate Committee of Claims which reported it to the Senate ‘without amendment’, but now containing the limiting words ‘land subject to private entry’. (The Congressional Globe, Vol. 19, p. 190, Jan. 9, 1849). “The bill died in the Senate. “The final Gerard Act (10 Stat. 849) omitted the ‘subject to private entry’ exception.” . Work v. Louisiana involved the Act of March 2, 1849, 9 Stat. 352, which “granted” to the State of Louisiana “the whole of those swamp and overflowed lands, which may be or are found unfit for cultivation”. The suit was by Louisiana to restrain the Secretary of the Interior from rejecting the State’s claim under the Act for lack of a showing that the lands were not mineral in character. It was urged in behalf of the Secretary that although the Act contained no express exception or reservation of mineral lands, such a reservation should be read into it by reason of a settled policy of the United States of withholding mineral lands from disposal except under laws expressly including them. The Court ruled that there was no such settled policy at the time of the enactment of the 1849 statute, and that the grant was in praesenti, giving the State an inchoate title to all of the swamp and overflowed lands, without, reference to their mineral character, which title became perfect as of the date of the Act when the granted land had been identified as required. In Work v. Louisiana the Court made the same ruling with reference to the Act of September 28, 1850, 9 Stat. 519," }, { "docid": "23080050", "title": "", "text": "of gold, silver, quicksilver, or copper shall be reserved from sale,” c. 166, 14 Stat. 85, and another declaring, \"no act passed at the first session of the thirty-eighth congress, granting lands to states or corporations, to aid in the construction of roads or for other purposes, or to extend the time of grants heretofore made, shall be so construed as to embrace mineral lands, which in all cases shall be, and are, reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant.” 13 Stat. 567. Although applied in one instance to lands in Nevada and in the other to grants made at a particular session of Congress, these declarations were but expressive of the will of Congress that every grant of public lands, whether to a State or otherwise, should be taken as reserving and excluding mineral lands in the absence of an expressed purpose to include them; and upon this theory both declarations were carried into the Revised Statutes as being general and per manent in their nature — the first in enlarged terms as § 2318, and the other as § 2346. By the Act of March 3, 1853, c. 145, 10 Stat. 244, Congress granted to the State of California sections 16 and 36 in each township for school purposes and large quantities of lands for other purposes. Mineral lands were neither expressly excepted from nor expressly included in the grant of the school sections, but were specially excepted from, the other grants. This difference led to a controversy over the true meaning of the school grant, the state authorities taking the view that it did, and the land officers of the United States that it did not, include mineral lands. Ultimately the controversy came before this court in Mining Co. v. Consolidated Mining Co., 102 U. S. 167, and the position taken by the land officers of the United States was sustained, the court saying, p. 174: “Taking into consideration what is well known to have been the hesitation and difficulty in the minds of Congressmen in" }, { "docid": "18177134", "title": "", "text": "the Chotard case as not reflecting the law. The legislative history of the Gerard Act shows that Congress expressly declined to include therein the limitation “subject to private entry”. (5) The Gerard Act is not to be taken as ex- eluding mineral lands in California. Such lands can be selected there and in other states'under Gerard scrip. In 1850 there was no settled policy of Congress requiring a mineral reservation or exclusion to be read into a general land grant. Work v. Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259 (1925). There was no such policy in 1853, since Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ed. 126 (1880), which read a mineral land exclusion into the Act of March 3, 1853, 10 Stat. 244, recognized that there was no such policy until the Act of July 26, 1866, 14 Stat. 251, the ruling in the Ivanhoe Mining Company case being based upon the special terms of the 1853 statute. No settled policy requiring a mineral reservation or exclusion to be read into a general land grant was established by Congress between 1850 and the date of the Gerard Act, 1855. In thirty-two private land grant acts of Congress, between 1845 when the Gerard Act was introduced and 1855 when it became law, Congress expressly excluded mineral lands in one and not in the others, thus demonstrating that it intended to deal with each land grant separately, i.e. without a settled policy. Therefore, if Congress had intended to exclude mineral lands in the Gerard Act it would have done so express^ ly. The Act of July 26, 1866 did not establish a settled policy to reserve mineral lands to the United States but on the contrary made' them free and open to exploration. And whether or not the Act of 1866 established a general policy for the disposal of mineral lands, the Gerard Act is an exception because the Act of 1866 applies to lode, not placer, claims. It is ruled in Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed." }, { "docid": "6532476", "title": "", "text": "There has been for some time a settled policy of the general government that public lands of a mineral character, unless expressly included, are excluded from grants to the states. 22 R. C. L. § 80, p. 333. In Mining Co. v Consolidated Mining Co., 102 U. S. 167, 26 L. Ed. 126, the court held that the grant of the sixteenth and thirty-sixth sections of public land to the state of California for school purposes made by the Act of March 3, 1853 (10 Stat. 246), was not in-tended to cover mineral lands, because such lands were impliedly excluded by the settled policy of the government. This ease has been followed down through a line of eases such as Mullan & Another v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170, and Davis’ Administrator v. Weibbold, 139 U. S. 507, 11 S. Ct. 628, 35 L. Ed. 238, to practically the last direct word on the subject in United States v. Sweet, Administrator of Sweet, 245 U. S. 563, 38 S. Ct. 193, 62 L. Ed. 473, where the very section involved here of the Utah Enabling Act was construed, and ‘t was held that the school section grant to the state of Utah thereby was not intended to embrace land known to be valuable for mineral at the time of the admission of the state, and the court says (567, 571, 572 [38 S. Ct. 193]): “In the legislation concerning the public lands it has been the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands from disposal save under laws specially including them. * * * And while the mineral land laws are not applicable to all the public land states, some being specially excepted, there has been no time since their enactment when they were not applicable to Utah. * * * What has been said demonstrates that the school grant to Utah must be read in the light of the mining laws, the" }, { "docid": "18177093", "title": "", "text": "Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L.Ud. 126 (1880). The Court discussed extensively the act there under consideration as well as other statutes enacted during the same period, reviewed the history of the settlement of California, the discovery of mineral wealth in that area, and the statutes and practices relating to the survey of these lands. It was concluded that “ ‘ * * *, Congress, after keeping this matter in abeyance about sixteen years, enacted, in 1866, 14 Stat. at L., 251, a complete system for the sale and other regulation of its mineral lands, so totally different from that which governs other public lands as to show that it could never have been intended to submit them to the ordinary laws for disposing of tlio territory of the United States.’ (102 U.S. 167, 174, 26 L.Ed. 126). “The Court’s reasoning and conclusions with respect to the statute there under consideration is equally applicable with respect to the question of -whether Gerard scrip may be located ..upon mineral lands in California. And the administrative practice has conformed to this conclusion, as illustrated by the various precedents' cited in the decision approved on June 2, 1947. ' “In its motion, West Coást does not controvert the finding that the land it seeks is mineral. It does contend, however, that the act of-March 4, 1933, is inapplicable because Gerard scrip may be located upon mineral land. It continues by assuming, arguendo, that even if the act does apply, the location of. this scrip upon this particular tract would not interfere with operations under the Federal leasing laws. The act of March 4, 1933, permits selection of mineral lands with a reservation to the United States of the minerals which are' subject, as are those on this tract, to the Mineral Leasing Act, provided that no land shall be subject to sucli selection ‘unless' it shall be determined by the. Secretary of the Interior that such disposal will not unreasonably interfere with operations’ under the Mineral Leasing Act. “In Caswell S. Neal (A-24147, April 9,1946)', scrip was" } ]

[ { "docid": "8006140", "title": "", "text": "for a new trial on damages. As the majority correctly notes, the Erie principle mandating that state substantive law governs in diversity actions, requires that “until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law ... in accordance with the then controlling decision of the highest state court.” Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941) (emphasis added); Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979). Consequently, the recent state supreme court decision in' Smith v. Fiber Control Corp., 300 N.C. 669, 268 S.E.2d 504 (1980), handed down subsequent to the trial court judgment, which refused to adopt the principle of strict liability in tort, vitiates the district court’s prediction that North Carolina would embrace the strict liability theory. I therefore agree with the majority’s holding that it was error for the district court to permit the jury to consider the plaintiffs’ strict liability claim. But I cannot adhere to the ultimate conclusion reached by the majority that the misplaced reliance on the strict liability theory in no way affected the outcome of the litigation. For assuming arguendo that VW is still liable on the crash-worthiness theory, it does not follow that the damages assessed against VW would remain unaltered after the strict liability claim has been eliminated. Two alternate denominations for the crash-worthiness concept — the enhancement or second collision theories — further emphasize that liability under such a doctrine does not make one responsible for all injuries occasioned by the initial accident, but only for those that could have been prevented by an alternate, safer design. See Huddell v. Levin, 537 F.2d 726, 740 (3d Cir. 1976); Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1069, 1076 (4th Cir. 1974). As the trial judge explained to the jury, VW was potentially liable under two tort theories, but the damages recoverable under each claim involved different amounts. Thus, as the judge correctly instructed on the strict liability count, “if you find there was a defect in the right" } ]

[ { "docid": "23504468", "title": "", "text": "PER CURIAM: The sole issue on appeal in this diversity case is whether, under the law of North Carolina, an automobile manufacturer may be held liable for defects in the design and manufacture of a vehicle which neither caused nor contributed to the cause of a collision, but served to exacerbate injuries sustained thereafter. See Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This is a question of law, Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1069 (4th Cir. 1974), and has not yet been addressed by the Supreme Court of that State (or by the intermediate appellate courts). Thus, it falls to the federal courts to forecast what the North Carolina Supreme Court would hold if presented with this issue. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); McClung v. Ford Motor Company, 472 F.2d 240 (4th Cir. 1973). The district court, after a careful review of related State cases and of the several and divergent federal court determinations of the issue, ruled that the North Carolina Supreme Court would not hold a manufacturer liable for injuries arising from defects which neither caused nor contributed to the accident. We find no reversible error in this conclusion and, for reasons sufficiently stated in its Memorandum and Order of April 9,1980, the judgment of the district court is AFFIRMED. . In the case of Seese, et al v. Volkswagenwerk AG, etc., 648 F.2d 833 (3d Cir. 1981), the court, in a divided opinion, predicted that North Carolina would adopt the second crash theory. The dissent argued that even if the second crash theory were applicable, judgment for the plaintiff was subject to error. The rejection by North Carolina, however, in Smith v. Fiber Control Corporation, 300 N.C. 669, 268 S.E.2d 504 (1980), of the principle of strict liability in tort fortifies our belief that if called upon the Supreme Court of North Carolina would also reject the second crash theory." }, { "docid": "8006088", "title": "", "text": "persuasive data; [it] predicts] that the [North Carolina Supreme Court] would hold otherwise.” Id. at 30. It did so without recognizing that here, the Supreme Court of North Carolina had already spoken to this issue (in Wilson), whereas in National Surety Corp. there had been no New Jersey Supreme Court decision which had dealt with the question that was in controversy there. It was only after the district court’s decision in this case, but during the pendency of this appeal, that the North Carolina Supreme Court in Smith v. Fiber Control Corp., 800 N.C. 669, 268 S.E.2d 504 (1980), refused to adopt the principle of strict liability in tort. In Smith, a personal injury action had been brought against the manufacturer of a machine which was responsible for injuring an employee who was working in a textile mill. The issue deemed dispositive by the Supreme Court of North Carolina was “whether there was sufficient evidence to carry the case to the jury on the question of contributory negligence.” Id. at 507. In concluding that contributory negligence was properly submitted to the jury, the Court specifically addressed the issue of strict liability in product liability actions. Because the North Carolina Supreme Court’s statement in this respect answers the arguments urged upon us by Seese, we quote this portion of Smith in full: Finally, plaintiff and amicus curiae urge this Court to adopt the doctrine of strict liability in product liability actions. In response to this request, we note that recent comprehensive legislation in this area by the General Assembly does not adopt strict liability in product liability cases. See G.S. 99B-1, et seq. (the 1979 Products Liability Act). Significantly, the Products Liability Act specifically reaffirms the applicability of contributory negligence as a defense in product liability actions. G.S. 99B-4(3). Suffice it to say, that given the recent legislative activity in this area, we are not presently inclined to consider adoption of the rule of strict liability in product liability cases. 268 S.E.2d at 509-10. Seese, on appeal, attempts to distinguish the clear impact of Smith. He argues that in Smith the" }, { "docid": "8006086", "title": "", "text": "the product reaches the user without substantial change. The rule applies even when the seller has used all possible care in preparing and selling the product and although there is no privity of contract between consumer and seller. In 1965, the Restatement of Torts, Second was promulgated and from that time until the district court’s decision in this case, forty-five states adopted the principle of strict liability in substantially the form described in § 402A of the Restatement. Moreover, during that period, no state Supreme Court ever rejected the strict liability theory. With that circumstance as a backdrop, the district court ruled that the plaintiffs could assert the doctrine of strict liability in tort because it predicted that the North Carolina Supreme Court would adopt that doctrine when it was presented with that issue. Although North Carolina intermediate courts had refused to accept the theory of strict liability in tort, the district court observed that in recent years the North Carolina Supreme Court had not precluded the use of that doctrine. At the time of the district court’s ruling, which predicted the adoption of strict liability by North Carolina, more than fifteen years had elapsed since the North Carolina Supreme Court decided Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501 (1963). Wilson held that in North Carolina the obligation of a manufacturer to the consumer was governed by the law of negligence, not by any concept of strict liability. Against this background, the district court predicted that if the North Carolina Supreme Court were faced with the questions of whether it should apply a strict liability theory, it would reject its prior Wilson decision, and would follow the lead of the vast majority of states and would adopt § 402A as North Carolina law. The district court, in reaching its conclusion, relied on National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) which held that a federal district court, while it may not ignore the decision of an intermediate [state] appellate court, is free to reach a contrary result if by analyzing “other" }, { "docid": "11538718", "title": "", "text": "(1980); Holley v. Burroughs Wellcome Co., 74 N.C.App. 736, 330 S.E.2d 228 (1985); Byrd Motor Lines v. Dunlop Tire & Rubber, 63 N.C.App. 292, 304 S.E.2d 773, 778 (1983). Accordingly, summary judgment is granted as to the claim sounding in strict liability. The Plaintiff’s negligence allegations claim that Defendants breached a duty to warn of dangerous qualities inherent in the Ford Escort in which she was a passenger, which was designed, manufactured, and installed with a tempered glass sunroof that shattered when the vehicle rolled over, allegedly causing Plaintiff to be ejected from the vehicle. In essence, Plaintiff alleges that the vehicle was not crashworthy. In Plaintiff’s breach of warranty allegations, she asserts that Defendants impliedly warranted that the vehicle was crashworthy and suitable for its intended use. Plaintiff further alleges that she relied upon that implied warranty and that Defendants’ breach of the warranty caused her injury. The North Carolina Supreme Court has not ruled on whether allegations that a vehicle was crashworthy or that the condition of a vehicle enhanced a Plaintiff’s injuries state a cause of action under either negligence or breach of implied warranty. The Circuit Court of Appeals for the Fourth Circuit, in which North Carolina is situated, has on three occasions had the opportunity to predict whether the North Carolina Supreme Court would recognize a negligence theory of crashworthiness and/or enhanced injury. Erwin v. Jeep Corp., 812 F.2d 172 (4th Cir.1987); Martin v. Volkswagen of America, Inc., 707 F.2d 823 (4th Cir.1983); Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1980). In all three cases, the Fourth Circuit predicted that the North Carolina Supreme Court would not recognize the doctrine of crash- worthiness and/or enhanced injury. In making these rulings, the Circuit Court of Appeals for the Fourth Circuit specifically relied upon the State Supreme Court’s refusal to adopt the doctrine of strict tort liability. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980). Circuit Judge Philips in his special concurrence in the Martin opinion stated as follows: ... North Carolina courts have not [adopted] such doctrinal expansions as" }, { "docid": "8006128", "title": "", "text": "S.E. 862, 864 (1979) that the North Carolina courts had “not embraced the doctrine of strict liability in tort.” Later, the Court of Appeals of North Carolina in Cockerham v. Ward, N.C.App., 262 S.E.2d 651 (1980) again implicitly rejected the theory of strict liability. . The relevant section of the North Carolina statute implicated in this argument reads: A claimant ... may bring a product liability action directly against the manufacturer of the product involved for breach of implied warranty; and the lack of privity of contract shall not be grounds for the dismissal of such action. N.C.Gen.Stat. § 99B-2(b). . The jury in Smith had found the plaintiff guilty of contributory negligence and thus the Supreme Court of North Carolina, by ruling as it did, affirmed the jury’s verdict which barred Smith’s claim. . The parties throughout this litigation have referred to this theory as the theory of “crash-worthiness” that is, that there is a legal obligation imposed upon a manufacturer to design and produce a reasonably crashworthy vehicle. Huddell v. Levin, 537 F.2d 726, 735 (3d Cir. 1976). The district court judge characterized this theory as one of “injury enhancement.” Because the two terms are interchangeable, in the course of this opinion we will refer to this theory as the crashworthiness theory, a theory describing liability for negligence that has caused injuries, but not the initial accident. . ,The district court in explaining the crashworthiness doctrine to the jury charged in part: When you have completed your deliberations on plaintiffs’ first theory of liability and have answered the interrogatories that pertain to that theory, you will then proceed to deliberate on plaintiffs’ second theory of liability. Recall that the two theories are separate and independent. Thus, you must consider plaintiffs’ second theory of liability regardless of your action on the first theory. Now, plaintiffs’ second theory of liability is that the design of the windshield and windshield retention mechanism in the 1974 Volkswagen were unreasonably dangerous in that it permitted the plaintiffs to be ejected, thereby causing greater injury to them than they would have received had they" }, { "docid": "8006127", "title": "", "text": "properly submitted the crashworthiness claim of the plaintiffs to the jury and we affirm the jury’s verdict on that ground. We also hold, after consideration of the other errors asserted by VW, that the district court did not err and thus should be sustained in its rulings. Accordingly, the judgment of the district court will be affirmed. . The parties agreed at the outset that this case was governed by the law of North Carolina. . Weir is not a party to this appeal. An order of the district court on August 27, 1979 approved a settlement between the plaintiffs and Weir. . Some states, in adopting the Restatement rule, have dropped the “unreasonably dangerous” requirement. See e. g., Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978) and Suter v. San Angelo Foundry and Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979). . We are aware that as recently as 1979 a North Carolina Court of Appeals had noted in Fowler v. General Electric Co., 40 N.C.App. 301, 252 S.E. 862, 864 (1979) that the North Carolina courts had “not embraced the doctrine of strict liability in tort.” Later, the Court of Appeals of North Carolina in Cockerham v. Ward, N.C.App., 262 S.E.2d 651 (1980) again implicitly rejected the theory of strict liability. . The relevant section of the North Carolina statute implicated in this argument reads: A claimant ... may bring a product liability action directly against the manufacturer of the product involved for breach of implied warranty; and the lack of privity of contract shall not be grounds for the dismissal of such action. N.C.Gen.Stat. § 99B-2(b). . The jury in Smith had found the plaintiff guilty of contributory negligence and thus the Supreme Court of North Carolina, by ruling as it did, affirmed the jury’s verdict which barred Smith’s claim. . The parties throughout this litigation have referred to this theory as the theory of “crash-worthiness” that is, that there is a legal obligation imposed upon a manufacturer to design and produce a reasonably crashworthy vehicle. Huddell v. Levin, 537 F.2d" }, { "docid": "14216909", "title": "", "text": "POSNER, Circuit Judge. Tina Barron, age 18, was rendered paraplegic and forced onto the welfare rolls as the result of an accident in 1984 in which the car she was riding in (driven by her sister) skidded on a rain-slick highway in North Carolina and turned over. Because Barron was not wearing a seatbelt (al though the car was equipped with seat-belts), she was flung out of the car, either through the closed sunroof, as she claims, or through the window on the passenger’s side of the front seat, which was also closed. Although a citizen of Illinois, Barron brought suit against Ford Motor Company of Canada, the manufacturer of the car, in a Florida state court. The parties being of diverse citizenship and Ford not a citizen of Florida, Ford was able to remove the case to federal district court in Florida, from which it sought to transfer the case, on grounds of convenience, 28 U.S.C. § 1404(a), to the Eastern District of North Carolina. The plaintiff countered with a request to transfer the case to the Central District of Illinois, and her request was granted and the case transferred. Applying Florida’s rules on conflict of laws (and thus anticipating Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990), which holds that the transferee court must apply the conflict of laws rules of the transferor jurisdiction whether the defendant or the plaintiff requested the transfer), Judge Mihm ruled that the law of North Carolina — as it happens, the only state in the United States not to recognize strict liability in products cases, Smith v. Fiber Controls Corp., 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989)—governed the substantive issues in the case. 716 F.Supp. 377 (C.D.Ill.1989). A two-week jury trial, in which the plaintiff tried to prove that she had been ejected through the sunroof and that Ford had been negligent in making the sunroof out of tempered rather than laminated glass, ended in a verdict for Ford. Barron argues" }, { "docid": "6349044", "title": "", "text": "Brendle’s estate, sued General Tire to recover for the medical expenses and pain and suffering resulting from Brendle’s injuries before death, and for his subsequent wrongful death. A federal court, sitting in North Carolina in a diversity case, must apply the law as announced by the highest court of that state or, if the law is unclear, as it appears the highest court of that state would rule. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Lowe’s North Wilkesboro Hardware v. Fidelity Mutual Life Insurance Co., 319 F.2d 469, 472 (4th Cir. 1963). The general rule, as stated by the Supreme Court of North Carolina in Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960), is that only persons in privity with the warrantor may recover on a warranty, and privity does not extend to an employee of a purchaser, because an employee is normally considered a stranger to the contract of warranty. Whatever erosion North Carolina has allowed to the privity requirement in breach of warranty actions has been limited to cases involving food and drink and insecticides in sealed containers which had warnings on the label which reached the ultimate consumer, or where the manufacturer had so advertised or given directions as to use so that a warranty could be viewed as running to the consumer. See Tedder v. Bottling Co., 270 N.C, 301, 154 S.E.2d 337 (1967); Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); and Terry v. Double Cola Bottling Co., 263 N.C. 1, 138 S.E.2d 753 (1964) (especially the concurring opinion). The plaintiff contends that because of the substantial amount of advertising General Tire used in the promotion of the particular brand of tire involved in this controversy, the implied warranty extended to the deceased truck driver, and thence to the administratrix of his estate. She relies primarily on Tedder v. Bottling Co., supra, which held that a jury question arose as to whether defendant bottler was liable for breach of implied warranty where the bottler had" }, { "docid": "11538717", "title": "", "text": "MEMORANDUM OPINION MIHM, District Judge. Plaintiff’s Complaint sounds in negligence, strict liability and breach of implied warranty. Defendants filed a Motion for Summary Judgment on all three counts, premised on North Carolina’s substantive law. A hearing was held at which the Court heard arguments by the parties and ruled that the Motion for Summary Judgment as to the strict liability claim was granted but denying the Motion as to the negligence and breach of warranty claims. The Court indicated it would memorialize its ruling in a written opinion; this is that opinion. Plaintiff's count in strict liability alleges that Defendants’ use of a tempered glass sunroof created an ultrahazardous condition and that the sunroof shattered when the vehicle rolled over and caused the Plaintiff to be seriously injured when she was ejected from the vehicle. Plaintiff further alleges that the ultrahazardous condition existed when the vehicle left the manufacturer’s control. North Carolina substantive law does not recognize the doctrine of strict tort liability. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980); Holley v. Burroughs Wellcome Co., 74 N.C.App. 736, 330 S.E.2d 228 (1985); Byrd Motor Lines v. Dunlop Tire & Rubber, 63 N.C.App. 292, 304 S.E.2d 773, 778 (1983). Accordingly, summary judgment is granted as to the claim sounding in strict liability. The Plaintiff’s negligence allegations claim that Defendants breached a duty to warn of dangerous qualities inherent in the Ford Escort in which she was a passenger, which was designed, manufactured, and installed with a tempered glass sunroof that shattered when the vehicle rolled over, allegedly causing Plaintiff to be ejected from the vehicle. In essence, Plaintiff alleges that the vehicle was not crashworthy. In Plaintiff’s breach of warranty allegations, she asserts that Defendants impliedly warranted that the vehicle was crashworthy and suitable for its intended use. Plaintiff further alleges that she relied upon that implied warranty and that Defendants’ breach of the warranty caused her injury. The North Carolina Supreme Court has not ruled on whether allegations that a vehicle was crashworthy or that the condition of a vehicle enhanced a Plaintiff’s injuries" }, { "docid": "15607573", "title": "", "text": "actions brought in ejectment. Plaintiffs argue that two earlier cases from the North Carolina Supreme Court, which were not mentioned in the decision of the Court of Appeals relied on by defendants, hold that laches may not be asserted as a defense to actions brought in ejectment. Under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), of course, we must apply the law announced by the highest court of North Carolina if the question has been decided by that court. If the question has not been decided, then we must apply what we “... find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State.” Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967). And the Court of Appeals of North Carolina is among the “other courts of the State” involved in this case. Under these rules, we analyze the North Carolina cases depended upon by the parties. There are five North Carolina appellate cases which most directly bear on the question at hand, four from the Supreme Court and one from the Court of Appeals. They are, in chronological order: Ramsey v. Nebel, 226 N.C. 590, 39 S.E.2d 616 (1946); Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6 (1948); Sparrow v. Dixie Leaf Tobacco Co., 232 N.C. 589, 61 S.E.2d 700 (1950); Scott Poultry Company v. Bryan Oil Company, 272 N.C. 16, 157 S.E.2d 693 (1967); and McRorie v. Query, 32 N.C.App. 311, 232 S.E.2d 312 (1977). Ramsey was a suit in ejectment between the owners of adjoining lots. One lot owner had placed improvements on the other’s land, and the other sued on account of improvements placed upon his lot by the neighbor. The improver defended on the ground that the plaintiffs were “estopped to deny the right and title of defendants” on the ground that the plaintiffs had had actual knowledge and frequent observation of the defendants’ operations. Although the first of the improvements had been placed on the land some 12 years prior" }, { "docid": "8006085", "title": "", "text": "district court concerning the non-use of seat belts by the plaintiffs and the district court’s rulings that the requirements for proof of damages set out in Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) were met by the plaintiffs. Additional errors claimed by VW include the admissibility of evidence introduced from the Fatal Accident Reporting System (FARS) and the relevance of a Federal Motor Vehicle Safety Standard. Finally, VW argues that the use of alternate jurors after deliberations had begun, gave the defendants a right to a new trial because of the technical violation of Federal Rule of Civil Procedure 47(b), which provides that alternate jurors shall be discharged after the jury retires to consider its verdict. II. Section 402A of the Restatement of Torts, Second makes the seller or manufacturer of any product that is in a defective condition which is unreasonably dangerous to the user or consumer or to his property, subject to liability for physical harm caused thereby, if the seller is engaged in the business of selling the product and the product reaches the user without substantial change. The rule applies even when the seller has used all possible care in preparing and selling the product and although there is no privity of contract between consumer and seller. In 1965, the Restatement of Torts, Second was promulgated and from that time until the district court’s decision in this case, forty-five states adopted the principle of strict liability in substantially the form described in § 402A of the Restatement. Moreover, during that period, no state Supreme Court ever rejected the strict liability theory. With that circumstance as a backdrop, the district court ruled that the plaintiffs could assert the doctrine of strict liability in tort because it predicted that the North Carolina Supreme Court would adopt that doctrine when it was presented with that issue. Although North Carolina intermediate courts had refused to accept the theory of strict liability in tort, the district court observed that in recent years the North Carolina Supreme Court had not precluded the use of that doctrine. At the time of" }, { "docid": "3994045", "title": "", "text": "Everglade carpet “was a higher quality carpet than what she [Ms. Ruffin] brought in [to the store].” (Roger L. Parker Deposition at p. 12.) Plaintiffs also rely on Mr. Parker’s statement to Ms. Ruffin that she was getting “a very good grade of material.” [Id. at p. 13.) These statements are merely “puffing” or Mr. Parker’s opinion or commendations on the product’s value. See Performance Motors, Inc. v. Allen, 280 N.C. 385, 393-94, 186 S.E.2d 161, 166 (1972) (statement that product “was supposed to last a lifetime and be in perfect condition” was an expression of opinion and did not create an express warranty); Warzynski v. Empire Comfort Systems, Inc., 102 N.C.App. 222, 226, 401 S.E.2d 801, 803-04 (1991) (affirming summary judgment based on finding that advertisement purporting to sell “America’s most complete line of reliable economical gas heating appliances” was merely puffing and could not create an express warranty as a matter of law); see also Delta Marine, Inc. v. Whaley, 813 F.Supp. 414, 420 (E.D.N.C.1993) (granting summary judgment on breach of express warranty claim because alleged statement that product would “do a good job” was not sufficient as a matter of law to create an express warranty). Accordingly, the statements relied upon by plaintiffs are insufficient to create an express warranty and plaintiffs’ claim for breach of such a warranty must he dismissed on this independent ground. C. Strict Liability The absence of evidence of a defect also warrants dismissal of plaintiffs’ claims for strict products liability. However, another independent basis exists for dismissing plaintiffs’ strict liability claim. North Carolina has not recognized a cause of action for strict liability in products liability cases. See Smith v. Fiber Controls Corporation, 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980) (refusing to adopt strict liability in products liability cases in light of North Carolina legislature’s failure to adopt such a theory in enacting Chapter 99B of North Carolina General Statutes governing products liability actions); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989). Moreover, to the extent North Carolina law recognizes claims for strict liability in" }, { "docid": "6349043", "title": "", "text": "of privity, might be conclusive as to the privity issue here. Accordingly, we issued an order suspending further pro ceedings pending the North Carolina state court decision in Dupree. The Dupree case, however, was not tried again but was settled. Since there has been no change in North Carolina law, we are of opinion that the district court was correct in its conclusion that privity between the parties is a necessary aspect of this action based on warranty, and we affirm the granting of summary judgment on that issue. The facts are not complicated. On September 13, 1965, William Brendle was injured in an accident in Lafayette County, Missouri while he was driving a truck for his employer, a North Carolina corporation. He died a week later from his injuries. The accident allegedly was caused by a blowout of the truck’s right front tire, which had been made in Ohio by the defendant, and had been sold to Brendle’s employer in North Carolina by a North Carolina subsidiary of General Tire. The plaintiff, admin-istratrix of Brendle’s estate, sued General Tire to recover for the medical expenses and pain and suffering resulting from Brendle’s injuries before death, and for his subsequent wrongful death. A federal court, sitting in North Carolina in a diversity case, must apply the law as announced by the highest court of that state or, if the law is unclear, as it appears the highest court of that state would rule. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Lowe’s North Wilkesboro Hardware v. Fidelity Mutual Life Insurance Co., 319 F.2d 469, 472 (4th Cir. 1963). The general rule, as stated by the Supreme Court of North Carolina in Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960), is that only persons in privity with the warrantor may recover on a warranty, and privity does not extend to an employee of a purchaser, because an employee is normally considered a stranger to the contract of warranty. Whatever erosion North Carolina has allowed to" }, { "docid": "11538719", "title": "", "text": "state a cause of action under either negligence or breach of implied warranty. The Circuit Court of Appeals for the Fourth Circuit, in which North Carolina is situated, has on three occasions had the opportunity to predict whether the North Carolina Supreme Court would recognize a negligence theory of crashworthiness and/or enhanced injury. Erwin v. Jeep Corp., 812 F.2d 172 (4th Cir.1987); Martin v. Volkswagen of America, Inc., 707 F.2d 823 (4th Cir.1983); Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1980). In all three cases, the Fourth Circuit predicted that the North Carolina Supreme Court would not recognize the doctrine of crash- worthiness and/or enhanced injury. In making these rulings, the Circuit Court of Appeals for the Fourth Circuit specifically relied upon the State Supreme Court’s refusal to adopt the doctrine of strict tort liability. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980). Circuit Judge Philips in his special concurrence in the Martin opinion stated as follows: ... North Carolina courts have not [adopted] such doctrinal expansions as strict liability and comparative negligence. While to some this may appear unenlightened, it may to others reflect a completely respectable and deep-seated attitude of judicial restraint and deference to legislative primacy in making significant changes in the long-established common law tort doctrine. In any event, judicial restraint in these related areas is a fact that must be taken into account by a federal diversity court in assessing the probable view of North Carolina’s appellate courts on the propriety of judicially adopting the crashworthiness doctrine. 707 F.2d at 826. Shortly before oral argument on Defendants’ Motion for Summary Judgment was heard, the North Carolina Court of Appeals issued its opinion in the case of Warren v. Columbo, 377 S.E.2d 249 (N.C.App.1989). The justices in the Warren case wrote three separate opinions. In Judge Orr’s lead opinion, he found that the plaintiff’s complaint of enhanced injuries sufficiently stated a cause of action sounding in negligence. (Warren, at 255). He specifically refused to consider the issue of whether the plaintiff's complaint stated a cause of action under a" }, { "docid": "7604824", "title": "", "text": "threshold issue constitutes an independent state ground; thus, it may be argued, no constitutional issue arises. It is “a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts.” Wainwright v. Sykes, supra, 433 U.S. at 81, 97 S.Ct. at 2503. Because there is no reason to suspect that the North Carolina Court of Appeals improperly sought to defeat a federal right, we, it may be convincingly argued, must accept that court’s decision on a question of state law. See Thomas v. Warden, 683 F.2d 83, 85 (4th Cir.1982) (“Where the [double jeopardy] claim is made in relation to state offenses, federal courts are essentially bound by state court interpretations of state legislative intent.”). Whichever of the two possible constructions of North Carolina law is correct, it appears that perhaps no constitutional error meriting habeas corpus relief has been made out here. See Hall v. Wainwright, 493 F.2d 37 (5th Cir.1974). However, it is not necessary to rest decision on the grounds that no constitutional issue is presented, but rather at most an erroneous error of state law has been committed, inasmuch as an inquiry into North Carolina law leaves us convinced that the North Carolina Court of Appeals reached the correct result in all events. Such an inquiry is appropriate bearing in mind that only the highest court of the state can determine in a binding fashion the rule of state law. E.g., Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967) (“the State’s highest court is the best authority on its own law.”). An opinion of an intermediate appellate court is ■persuasive in situations where the highest state court has not spoken but does not prevail where the federal court is convinced that the highest court of the state would rule to the contrary. See Brendle v. General Tire & Rubber Co., 505 F.2d 243, 245 (4th Cir.1974) (“A federal court, sitting in North Carolina in a diversity case, must apply the" }, { "docid": "8006087", "title": "", "text": "the district court’s ruling, which predicted the adoption of strict liability by North Carolina, more than fifteen years had elapsed since the North Carolina Supreme Court decided Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501 (1963). Wilson held that in North Carolina the obligation of a manufacturer to the consumer was governed by the law of negligence, not by any concept of strict liability. Against this background, the district court predicted that if the North Carolina Supreme Court were faced with the questions of whether it should apply a strict liability theory, it would reject its prior Wilson decision, and would follow the lead of the vast majority of states and would adopt § 402A as North Carolina law. The district court, in reaching its conclusion, relied on National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) which held that a federal district court, while it may not ignore the decision of an intermediate [state] appellate court, is free to reach a contrary result if by analyzing “other persuasive data; [it] predicts] that the [North Carolina Supreme Court] would hold otherwise.” Id. at 30. It did so without recognizing that here, the Supreme Court of North Carolina had already spoken to this issue (in Wilson), whereas in National Surety Corp. there had been no New Jersey Supreme Court decision which had dealt with the question that was in controversy there. It was only after the district court’s decision in this case, but during the pendency of this appeal, that the North Carolina Supreme Court in Smith v. Fiber Control Corp., 800 N.C. 669, 268 S.E.2d 504 (1980), refused to adopt the principle of strict liability in tort. In Smith, a personal injury action had been brought against the manufacturer of a machine which was responsible for injuring an employee who was working in a textile mill. The issue deemed dispositive by the Supreme Court of North Carolina was “whether there was sufficient evidence to carry the case to the jury on the question of contributory negligence.” Id. at 507. In concluding that contributory" }, { "docid": "8006139", "title": "", "text": "The Court erred in allowing Reinaldo Irizarry’s “Day in the Life Film” into evidence and raised the false issue of bifurcation. The jury during the trial was exposed to a television program, highly critical of defendants, on which plaintiffs’ expert appeared all to the prejudice of defendants. The Court improperly compelled Ian Ceresney, Esq., to testify at trial. . The relevant portions of Rule 47(b) of the Fed.R.Civ.P. and Fed.R.Crim.P. 24(c) are identical, and both read: An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. ADAMS, Circuit Judge, dissenting. Recognizing that we are dealing with issues that have come to the fore after a lengthy trial and subsequent to the painstaking efforts of the trial judge to resolve difficult questions about the development of tort law in North Carolina, it is with some hesitance that I dissent from the panel’s disposition of this appeal. I. At a minimum, I believe that removal of the strict liability claim from the controversy necessitates a remand for a new trial on damages. As the majority correctly notes, the Erie principle mandating that state substantive law governs in diversity actions, requires that “until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law ... in accordance with the then controlling decision of the highest state court.” Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941) (emphasis added); Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979). Consequently, the recent state supreme court decision in' Smith v. Fiber Control Corp., 300 N.C. 669, 268 S.E.2d 504 (1980), handed down subsequent to the trial court judgment, which refused to adopt the principle of strict liability in tort, vitiates the district court’s prediction that North Carolina would embrace the strict liability theory. I therefore agree with the majority’s holding that it was error for the district court to permit the jury to consider the plaintiffs’ strict liability claim. But I cannot adhere to the ultimate conclusion" }, { "docid": "8384343", "title": "", "text": "S.Ct. 817, 822, 82 L.Ed. 1188 (1938). When no such controlling precedent of the state’s highest court exists, we face the nettlesome problem of trying to predict what that court would do. In that situation, of course, we may look to decisions of state’s intermediate appellate courts for guidance. Commissioner of Internal Revenue v. Bosch’s Estate, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir.1996). When, however, there is a decision of the Supreme Court of the Commonwealth which is directly on point, we are bound by that decision. We must follow the ruling of the highest court of Pennsylvania even if the precedent is old. We must do so even if we think that the state Supreme Court would change its mind were it ever to revisit the subject. See, Erie, 304 U.S. at 78, 58 S.Ct. at 822. The Court of Appeals reiterated these principles in Seese v. Volkswagenwerk, A.G., 648 F.2d 833 (3d Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981), a diversity action involving the death of passengers in a Volkswagen van. North Carolina law was applicable. The Supreme Court of that state, more than fifteen years before, had refused to adopt strict liability under § 402A of the Restatement, Torts. The district court predicted that the North Carolina Supreme Court, if faced again with the issue, would reverse itself and follow the vast majority of the states in accepting § 402A. The Court of Appeals rejected this reasoning. It quoted the United States Supreme Court decision in West v. AT & T, 311 U.S. 223, 236-37, 61 S.Ct. 179, 183-84, 85 L.Ed. 139 (1940), to the effect that “a federal court must bow to the interpretation of the highest court of a state as ‘the final arbiter of what is state law.’ ” Seese, 648 F.2d at 838. We find further support for this position in Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526" }, { "docid": "792568", "title": "", "text": "Carolina fraudulent conveyance law. In a diversity case the Court enforcing state enacted rights must apply the law of North Carolina as declared by its legislature in a statute or by the North Carolina Supreme Court in a decision. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). If there are no decisions by the highest court of a state then a federal court must apply what it finds to be the state law after giving “proper regard” to relevant rulings of other courts of the state. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). In the absence of state court authority a federal court must apply the law as it appears the North Carolina Supreme Court would rule. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Brendle v. General Tire & Rubber Co., 505 F.2d 243, 245 (4th Cir. 1974). This case, involving as it does real property issues, statutory reconciliation and interpretation, archaic principles and novel factual settings, calls attention to the “mounting mischief inflicted on the federal judicial system” which Justice Frankfurter described as the result of diversity jurisdiction. Lumbermen’s Mut. Cas. Co. v. Elbert, 348 U.S. 48, 54, 75 S.Ct. 151, 155, 99 L.Ed. 59, 65 (1954) (concurring opinion). A. NCNB DEED OF TRUST This transaction raises issues concerning the interplay of the recordation statutes and fraudulent conveyances statutes. The policies behind these two statutory schemes differ, one promotes the certainty of records, the other prevents fraud. The Court must be mindful to avoid unwarranted disruption of these policies which would undermine the effectiveness of the statutory scheme. If two acts of the legislature are applicable to the same subject, their provisions are to be reconciled if this can be done by fair and reasonable intendment. Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967). However, to the extent that they are necessarily repugnant, the one last enacted shall prevail. Id." }, { "docid": "3994046", "title": "", "text": "claim because alleged statement that product would “do a good job” was not sufficient as a matter of law to create an express warranty). Accordingly, the statements relied upon by plaintiffs are insufficient to create an express warranty and plaintiffs’ claim for breach of such a warranty must he dismissed on this independent ground. C. Strict Liability The absence of evidence of a defect also warrants dismissal of plaintiffs’ claims for strict products liability. However, another independent basis exists for dismissing plaintiffs’ strict liability claim. North Carolina has not recognized a cause of action for strict liability in products liability cases. See Smith v. Fiber Controls Corporation, 300 N.C. 669, 678, 268 S.E.2d 504, 509-10 (1980) (refusing to adopt strict liability in products liability cases in light of North Carolina legislature’s failure to adopt such a theory in enacting Chapter 99B of North Carolina General Statutes governing products liability actions); Warren v. Colombo, 93 N.C.App. 92, 102, 377 S.E.2d 249, 255 (1989). Moreover, to the extent North Carolina law recognizes claims for strict liability in any context, such claims exist only for ultra hazardous activities. See Woodson v. Rowland, 329 N.C. 330, 351, 407 S.E.2d 222, 234 (1991); Driver v. Burlington Aviation, Inc., 110 N.C.App. 519, 530, 430 S.E.2d 476, 483-84 (1993). The court holds as a matter of law that even if North Carolina recognized strict products liability claims, the sale and installation of carpet cannot be considered an ultra hazardous activity, and, thus, plaintiffs’ claims for strict liability must be dismissed on this independent ground. See Driver, supra (affirming dismissal of strict liability claim based on manufacturer’s failure to properly instruct pilot on risk of carburetor icing in small passenger áircraft); see also Woodson, supra (noting that North Carolina courts have not recognized any activity, other than blasting, as ultra hazardous). CONCLUSION Defendants’ motion to strike the affidavit and testimony of Dr. Rosalind Anderson will be granted pursuant to F.R.Civ.P. 56(e) because her opinion testimony would not be admissible under F.R.E. 702 and the Supreme Court’s recently announced standard in Daubert. Without such evidence, plaintiffs have failed to" } ]

[ { "docid": "23247040", "title": "", "text": "buying this used plane, or any customer of that person, placed, or would have placed, any reliance on any conduct of Ozark. Without reliance there is no liability- There are cases which impose § 402A liability on the seller of a used product. See e. g. Hovenden v. Tenbush, Tex.Civ.App., 529 S.W.2d 302; and Markle v. Mulholland’s, Inc., 265 Or. 259, 509 P.2d 529. We are aware of no case which has extended strict liability to an intermediate owner and seller. Cases rejecting this concept include Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633,105 Cal.Rptr. 890; Ikerd v. Lapworth, 1 Cir., 435 F.2d 197, 201-203. Plaintiffs’ reliance on the definition of “merchant” found in § 2-104 of the Uniform Commercial Code does not help them. Ozark was an operator of commercial aircraft under federal certification. Its aircraft are depreciating assets. When it sells an aircraft at a profit, it must reinvest in flight equipment or retire debt arising from investment in flight equipment. It did not design, manufacture, alter, or misrepresent the plane. It was a commercial air carrier, not a merchant or a person engaged in the business of selling airplanes. In regard to the negligence claim, Ozark was the fourth owner in the chain of title and was succeeded by two other owners. Ozark owed no duty to the subsequent purchaser or to those to whom that purchaser sold transportation. Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419, 423. The record discloses no issue as to any material fact. Summary judgment was proper. No matter what theory of liability is asserted, whether it is negligence, implied warranty, or strict liability in tort, and no matter what state law is applicable to the peculiar facts, Ozark is not liable to the plaintiffs. The judgments in favor of Martin and Ozark are severally affirmed." } ]

[ { "docid": "22072371", "title": "", "text": "in the business of selling sawmill trimmers, the affidavit cannot support the summary judgment. The affidavit leaves many material fact questions about Georgia-Pacific’s sales of used sawmill equipment unanswered. For example, Georgia-Pacific made no showing with respect to (1) the number of used equipment sales made by Georgia-Pacific; (2) the amount of revenue generated by those sales; (3) the number of employees or the extent of other corporate resources devoted to making the sales; or (4) the use of advertising or other marketing techniques to publicize the availability of used equipment for sale. While summary judgment may have been proper under the district court’s view of Texas law, under which these questions are immaterial, it cannot stand under our understanding of comment f. Since the affidavit leaves open the possibility that these questions will be answered in a manner favorable to Galindo, summary judgment for Georgia-Pacific was improper. Georgia-Pacific’s reliance on Bailey v. ITT Grinnell Corp., 536 F.Supp. at 84, is misplaced. In Bailey, defendant purchased a punch press, used it in its business for a number of years, and then sold it through a used equipment broker. The district court, applying Ohio law, granted summary judgment for the defendant on the ground that the sale was an occasional sale exempted by comment f from section 402A liability. Defendant admitted selling the punch press that allegedly caused plaintiff’s injuries, but submitted an affidavit that stated it “is not and has never been, a designer, manufacturer, assembler, marketer, rebuilder, distributor, retailer, or seller of punch presses.” The court held that this affidavit was sufficient to shift the burden to the plaintiff to demonstrate a fact question for trial. The court further held that plaintiff could not discharge that burden by reliance on the claim that “[defendant’s] corporate size creates an inference that [defendant] transfers numerous presses.” In Bailey, there was nothing in the record to indicate that defendant had made other sales of punch presses. The affidavit stated that, but for the sale of the press involved in the case, defendant had never been a seller of punch presses. In this" }, { "docid": "23674998", "title": "", "text": "which he challenges were not only erroneous but were so prejudicial as to amount to reversible error. Fed.R.Civ.P. 61; Fed.R. Evid. 103(a). III. EVIDENTIARY RULINGS Josephs challenges the court’s action in granting Harris’ in limine motion presented and ruled upon the morning the trial began which, in effect, limited Josephs’ proof of the alleged defective condition to the date of manufacture, 1963, rather than the date of sale to Josephs’ employer, 1973. The court’s order precluded Josephs from introducing at trial: “Any evidence relating to standards, publications or text materials adopted or published subsequent to the manufacture of the Harris Press in 1963.” App. at 79a, 82a. Inexplicably, although all of plaintiff’s evidence was required to focus on the date of manufacture, the time frame referred to in the interrogatory given to the jury was “the time of [the] sale to Poeono Press.” Although the record does not contain any statement by the district court as to the basis for its evidentiary rulings limiting the introduction of post-1963 evidence, the parties appear to have understood that the court ruled that in determining whether a defendant will be held strictly liable for a defective product under § 402A of the Restatement (Second) of Torts, the defectiveness of the product must be decided by reference to the date of manufacture rather than the date of sale. We believe the court erred in so ruling. The Pennsylvania Supreme Court has held that § 402A of the Restatement (Second) of Torts is the applicable law in Pennsylvania. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The language of § 402A manifestly applies to the act of “selling” rather than “manufacturing.” It provides: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial" }, { "docid": "23464085", "title": "", "text": "Hercules Powder Co., 237 Cal.App.2d 44, 53, 46 Cal.Rptr. 552, 558 (1965)); see also Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir.1977) (“If a product lacks warnings or instructions as to its proper and safe use and this absence renders the product ‘defective,’ its manufacturer is liable for any proximately caused injuries.” (emphasis supplied)). Comment j of the Restatement, as adopted by the Oregon Legislature, confirms this approach: j. Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. Restatement (Second) of Torts § 402A cmt. 3 (1965). Although an adequate warning will prevent the reliance on a theory of strict liability in a failure to warn defect case, such a warning will not make safe a product with a manufacturing defect as alleged in this case. The distinction between manufacturing defects and defects due to lack of warning has been recognized by the Oregon courts. In Gunstone v. Blum, 111 Or.App. 332, 825 P.2d 1389, rev. denied, 313 Or. 354, 833 P.2d 1283 (1992), the plaintiff sued the manufacturer of a mini drill press in which he had injured his hand. Plaintiff claimed the manufacturer was strictly liable for the injury based on the machines’s defective design. In his appeal of a jury verdict for the defendant manufacturer, the plaintiff argued the court had erred in instructing the jury on the duty of the manufacturer to warn a user of generally known and recognized dangers. Id. at 335, 825 P.2d at 1391. The Court of Appeals upheld the instruction: The instruction merely told the jury that, if it were to find that the danger presented by the drill press was “generally'known and recognized,” then the manufacturer had no duty to warn of that danger" }, { "docid": "19092771", "title": "", "text": "on through employees who will actually use the product purchased by their employers.” Salvador v. I.H. English of Phila., Inc., 224 Pa.Super. 377, 307 A.2d 398, 402 (1973). . The Berriers contend that a third Supreme Court case, Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), allows bystander recovery under Section 402A. There, an employee sued after being injured by objects falling from a crane at the job site. However, the manufacturer/seller there conceded that Kuisis was a ''user” of the crane within the meaning of Section 402A. Id. at 919. The case therefore did not involve a \"bystander.” . Although the Court referred to \"the consumer,” given the context of that statement, it does not appear that the Court intended to limit that term to \"users.” . The trial court granted the defendants' motion for summary judgment on the negligent-design-defect claim, holding that when a product is found not defective for strict liability purposes, a negligent-design defect must also fail. 841 A.2d at 1003. . As to the negligent-design defect claim, the Superior Court held that since it had found the trial court's decision on the strict liability claim to be error, it had to reverse the entry of summary judgment on the negligent-design defect claim. 841 A.2d at 1004. However, we are not concerned here with such a claim. . In Davis, the Court held that a manufacturer could be held strictly liable for subsequent changes that made its product unsafe if those changes were reasonably foreseeable. . Under Section 1, \"[o]ne engaged in the business of selling or otherwise distributing” applies to \"manufacturers.” Restatement (Third) of Torts: Products Liability, § 1, cmt. c. . See, e.g., Wasik v. Borg, 423 F.2d 44, 47 (2d Cir.1970) (Vermont would permit innocent bystanders to recover under § 402A.); Beaver v. Howard Miller Clock Co., Inc., 852 F.Supp. 631, 635 (W.D.Mich.1994) (“The Michigan Supreme Court has held that a manufacturer of a product owes a legal obligation of due care to a bystander affected by the use of its product.”); Rivers v. Great Dane Trailers, Inc., 816 F.Supp." }, { "docid": "22072379", "title": "", "text": "Co., 505 S.W.2d 682, 691 (Tex.Civ.App. —San Antonio 1973) (strict liability applies to defendant who displays defective product in retail store in hopes of making sale, though no sale has yet occurred), writ ref’d n.r.e., 513 S.W.2d 4 (Tex.1974). Though no sale has occurred, the rationale for strict liability is perceived by Texas courts to apply equally to parties, like the ones in these cases, who have \"introducfed] products into the channels of commerce.\" Rourke, 530 S.W.2d at 800. Texas courts have not been reluctant, however, to refuse extension of section 402A in cases in which its rationale is thought not to apply. In Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374 (Tex.1978), for example, the Texas Supreme Court reversed a strict-liability judgment against a tire manufacturer for injuries caused by the blow-out of an allegedly defective tire. The manufacturer supplied the tire to a testing firm with whom it had contracted to test its products. The court held that, because the tire had not been released in some manner to the consuming public (i.e., had not been placed into the stream of commerce), strict liability did not apply to such a “bailment for mutual benefit.\" Likewise, in Hernandez v. Southern Pacific Transportation Co., 641 S.W.2d 947 (Tex.App. — Corpus Christi 1982, no writ), the court held that strict liability could not be imposed on a railroad company that supplied a stanchion to its wholly-owned trucking subsidiary for use by an employee of the trucking company in unloading trailers from railroad cars. In the court’s view, the railroad company had not placed the stanchion into the channels of commerce. See abo Thate v. Texas & Pacific Ry., 595 S.W.2d 591 (Tex.Civ.App. — Dallas 1980, no writ) (same). . See, e.g., Bailey v. ITT Grinnell Corp., 536 F.Supp. 84 (N.D.Ohio 1982) (applying Ohio law) (summary judgment in favor of seller of single punch press used in seller’s manufacturing business); Siemen v. Alden, 34 Ill.App.3d 961, 341 N.E.2d 713, 715 (1975) (summary judgment in favor of seller where “only sale of a saw or sawmill equipment was to plaintiff\"); McKenna v. Art" }, { "docid": "5332894", "title": "", "text": "for leave to amend asserted no facts to support a valid theory of liability against Amsted. That brief, and plaintiffs’ reply brief, which is not in the record but is referred to in the district court’s order, 448 F.Supp. at 261, did no more than speculate as to possible theories of Amsted’s liability. The following statements from those briefs illustrate: No evidence is presented that would enable us to conclude other than that [Amsted] is merely a continuation of the Bontrager Corporation which originally manufactured the punch press machine. (Emphasis added.) 448 F.Supp. at 261. And: It is just as likely on the state of this record that BONTRAGER merged with AMSTED or that AMSTED expressly agreed to become liable for BONTRAGER’s torts. (Emphasis added.) Id. It is true that if plaintiffs could show any of these things, Amsted might be liable for Bontrager’s manufacture of the press under one of the recognized exceptions to the rule that a corporation does not assume the tort liability of another corporation merely by purchasing its assets. E. g., Leannais v. Cincinnati, Inc., supra, 565 F.2d at 439. But the statements quoted above patently are mere speculation about the relationship of Amsted to Bontrager and plaintiffs alleged no facts in their papers submitted to the district court to substantiate their guesses. Since the motion for leave to amend failed to allege facts supporting a valid theory of Amsted’s liability, it failed to cure the defect in the original complaint and the district court properly denied the motion. Cohen v. Illinois Inst. of Tech., supra. On appeal, plaintiffs have raised two further issues which do not appear to have been raised before the district court. First, plaintiffs appear to argue that under the Wisconsin direct action statute, Wis. Stat. § 803.04(2)(a), Travelers is liable for plaintiffs’ injuries, regardless of whether plaintiffs can identify the manufacturer of the punch press as Travelers’ insured. That clearly is not the law. “[A]n insurance company’s liability under the Wisconsin direct action statute is derivative, i. e., the ‘insurer is not liable unless the assured is.’ Hunt v. Dollar," }, { "docid": "16461258", "title": "", "text": "that NAPA should be held strictly liable for manufacturing and selling a defective and unreasonably dangerous product; that NAPA was negligent in the design, manufacture, and inspection of the battery; that NAPA failed to warn purchasers of its batteries of a latent dangerous condition; that NAPA breached an implied warranty of merchantability; and that NAPA misrepresented a “material fact concerning the character or quality” of the battery. NAPA seeks summary judgment on the ground that it neither manufactured, sold, inspected, nor, in any other fashion, placed the allegedly defective battery on the market. As evidentiary support for this assertion, NAPA submitted the affidavit of its president, Robert E. McKenna. Mr. McKenna explains that NAPA is a nonprofit membership organization which provides marketing and consulting services to its member companies. According to McKen-na, NAPA develops marketing concepts and programs and offers them to its members who may either use them or not as they choose. NAPA also licenses the use of its trademark by manufacturers and members of its association. NAPA charges no fee for the use of the NAPA name. Distribution of parts is done by five corporations who are members of NAPA and are licensed to use the NAPA trademark. Genuine Parts, Inc., also named as a defendant, is a member of NAPA. As such, it was authorized to allow its independently owned customer, Ruleville Parts, to use the NAPA name. The various member companies contribute to fund national advertising under the NAPA name, but NAPA itself does not manufacture, market, test, inspect, distribute, or warehouse any products. NAPA contends that because it was not a seller of the exploding battery that it is not liable under any of the theories advanced by the plaintiff. II. DISCUSSION A. Strict Liability and Negligence Mississippi has adopted the approach to strict liability for a defective product that is set forth in Restatement (Second) Torts § 402A. Coca Cola Bottling Co., Inc. of Vicksburg v. Reeves, 486 So.2d 374, 377 (Miss.1986). Section 402A states the general rule that one who sells any product in a defective condition unreasonably dangerous to the user" }, { "docid": "20062766", "title": "", "text": "of any limitations or dangers associated with aviation-related use of the goggles. Firth Aff. at ¶ 17. Although the Giffin Affidavit at paragraph 27 may point to knowledge on the part of ITT of these dangers, it also clearly establishes superior knowledge on the part of the Government, which nevertheless continued to use the equipment. “It is clear from the record, in light of all the information received to date, that the government knew as much as, or more than, the defendant____ There is no substantial basis for believing that further discovery will reveal any persuasive information on this subject.” “Agent Orange” Litigation, 611 F.Supp. 1223 at 1263 (D.N.Y.1985). The court in “Agent Orange” stated: [A] defendant who claims protection from the government contractor defense must prove each of its elements. A defendant’s failure to establish the defense will not, of course, mean that the defendant necessarily will be held liable. As to that defendant the litigation then would proceed to other issues such as negligence, strict liability, general causation, specific causation, and damages. 534 F.Supp. at 1056. Accordingly, the Court finds that ITT has satisfied its burden of proof on a summary judgment motion that the government contractor defense shields ITT from liability for design defects. II A. The government contractor defense shields a military contractor from liability for design defects only, and not for manufacturing defects. ITT has met its burden on a motion for summary judgment to establish the government contractor defense. For the same reasons that ITT satisfied the second prong of the government contractor defense, plaintiffs cannot prevail on their claim of manufacturing defect. Although the plaintiffs submitted numerous exhibits and affidavits (including excerpts from the affidavits submitted on behalf of defendant’s motion), none presented facts that supported their allegations that the night vision goggles worn by the pilot were manufactured by ITT, that they were defective or that they were the cause of the accident. No evidence has been adduced that would enable a finder of fact rationally to choose among the multiplicity of ways in which the collision could have occurred. The Ninth" }, { "docid": "22072372", "title": "", "text": "a number of years, and then sold it through a used equipment broker. The district court, applying Ohio law, granted summary judgment for the defendant on the ground that the sale was an occasional sale exempted by comment f from section 402A liability. Defendant admitted selling the punch press that allegedly caused plaintiff’s injuries, but submitted an affidavit that stated it “is not and has never been, a designer, manufacturer, assembler, marketer, rebuilder, distributor, retailer, or seller of punch presses.” The court held that this affidavit was sufficient to shift the burden to the plaintiff to demonstrate a fact question for trial. The court further held that plaintiff could not discharge that burden by reliance on the claim that “[defendant’s] corporate size creates an inference that [defendant] transfers numerous presses.” In Bailey, there was nothing in the record to indicate that defendant had made other sales of punch presses. The affidavit stated that, but for the sale of the press involved in the case, defendant had never been a seller of punch presses. In this case, on the other hand, Galindo does not have to infer from Georgia-Pacific’s size that it has made more than one sale. The affidavit itself states that other sales have in fact been made. Moreover, the affidavit does not make a prima facie showing that, although other sales have been made, sales efforts do not rise to the level of a business in which Georgia-Pacific is engaged. On the record before us, that is an open question. Cf. Walker v. Skyclimber, Inc., 571 F.Supp. 1176, 1179 (D.V.I.1983) (affidavit that defendant “is not in the business of selling, distributing, advertising, or maintaining any sales agency,” sufficient to shift summary judgment burden; nothing in the record to indicate that other sales had been made). What we have said thus far obviously disposes of Galindo’s claim that the record conclusively shows that Georgia-Pacific is in fact engaged in the business of selling used sawmill trimmers. There is simply not enough evidence in the record to say, one way or the other, whether Georgia-Pacific is engaged in the business" }, { "docid": "5864727", "title": "", "text": "ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third person, or even to his buyer, in the absence of his negligence. An analogy may be found in the provision of the Uniform Sales Act, § 15, which limits the implied warranty of merchant able quality to sellers who deal in such goods; and in the similar limitation of the Uniform Commercial Code, § 2-314, to a seller who is a merchant. The plain meaning of Comment f is that § 402A strict liability theory is a theory not suited for application to the occasional seller. See Royal Business Machines, Inc. v. Lorraine Corp., 633 F.2d 34 (7th Cir.1980); Richards v. Georg Boat and Motors, Inc., 179 Ind.App. 102, 384 N.E.2d 1084 (1979); Abdul-Warith v. Arthur G. McKee and Co., 488 F.Supp. 306 (E.D.Pa.1980) aff’d 642 F.2d 440 (3d Cir.1981). For example, in Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890 (1970), Paper-mate Manufacturing Company bought a press from Improved Machinery, the manufacturer, and five years later sold it to Balido’s employer. Balido was injured while working with the machine and attempted to go against Papermate on a § 402A theory. The Court rejected her claim finding: [T]here was nothing to suggest that Papermate was a conduit for the production or distribution of Improved’s presses. Papermate was no more than a one time occasional seller who does not become subject to strict liability for manufacturing or design defects. Id. 105 Cal.Rptr. at 895; See generally 99 A.L.R.3d 651 (1980). In determining whether HOVIC is “engaged in the business of selling” hoists, this Court must look not to the volume of HOV-IC’s sales, but to whether they “carried on an established and" }, { "docid": "22072380", "title": "", "text": "had not been placed into the stream of commerce), strict liability did not apply to such a “bailment for mutual benefit.\" Likewise, in Hernandez v. Southern Pacific Transportation Co., 641 S.W.2d 947 (Tex.App. — Corpus Christi 1982, no writ), the court held that strict liability could not be imposed on a railroad company that supplied a stanchion to its wholly-owned trucking subsidiary for use by an employee of the trucking company in unloading trailers from railroad cars. In the court’s view, the railroad company had not placed the stanchion into the channels of commerce. See abo Thate v. Texas & Pacific Ry., 595 S.W.2d 591 (Tex.Civ.App. — Dallas 1980, no writ) (same). . See, e.g., Bailey v. ITT Grinnell Corp., 536 F.Supp. 84 (N.D.Ohio 1982) (applying Ohio law) (summary judgment in favor of seller of single punch press used in seller’s manufacturing business); Siemen v. Alden, 34 Ill.App.3d 961, 341 N.E.2d 713, 715 (1975) (summary judgment in favor of seller where “only sale of a saw or sawmill equipment was to plaintiff\"); McKenna v. Art Pearl Works, Inc., 225 Pa.Super. 362, 310 A.2d 677, 680 (1973) (summary judgment in favor of seller who, \"in an effort to terminate its business operations, sold all its corporate assets”); Daniels v. McKay Machine Co., 607 F.2d 771 (7th Cir.1979) (applying Illinois law) (summary judgment for lessor of entire plant which included an allegedly defective \"hot shear\" machine); Bevard v. Ajax Manufacturing Co., 473 F.Supp. 35, 39 (E.D.Mich.1979) (applying Michigan law) (summary judgment for \"one shot” seller of press used in its business); Luna v. Rossville Packing Co., 54 Ill.App.3d 290, 12 Ill. Dec. 115, 369 N.E.2d 612 (1977) (summary judgment for party who leased the only conveyor it owned to its own corporation); Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 639, 105 Cal.Rptr. 890, 895 (1972) (\"one-time” sale of molding press). See generally Annot., 99 A.L. R.3d 651 (1980)." }, { "docid": "820886", "title": "", "text": "II. “Common Law Warranty” or “Product Liability” By hanging his hat on this theory, Plaintiff goes from the frying pan into the fire. The principal difficulty with this lawsuit, as to this Defendant, is this Defendant’s status. Altamil is only an occasional seller. It is not a manufacturer, dealer, wholesaler or retailer. It is not even in the business of reselling used presses. Rather, Altamil simply had an old press, and sold it. Purely from a policy standpoint — a policy I hasten to recognize that the Federal Courts are not free to announce — it would seem inappropriate to bring them into such a product suit. Owners of perfectly good and reuseable products will junk them rather than risk product liability for things that simply pass through their hands. This would be economic waste. Also, the rationale for product liability would not underlie holding such a Defendant liable. As Prosser says, “[w]hen a housewife, on one occasion sells a jar of jam to her neighbor, or the owner of an automobile trades it in to a dealer, the undertaking to the public and the justifiable reliance upon that undertaking on the part of the ultimate consumer, which are the basis of strict liability, are conspicuously lacking.” W. Prosser, Law of Torts 664 (4th ed. 1971) [hereinafter Prosser]. Prosser also states that, “[a]s to strict liability, whether on warranty or in tort, no case has been found in any jurisdiction in which it has been imposed upon anyone who was not engaged in the business of supplying goods of the particular kind. The Second Restatement of Torts has so limited the liability.” Id. Neither Prosser, the Defendant-Movant nor I can find any such case in Michigan. Plaintiff suggests that the Defendant need not be a manufacturer or retailer. He cites three cases. The first, Buckeye Union v. Detroit Edison, 38 Mich. App. 325, 196 N.W.2d 316 (1971) deals with the application of product liability law to suppliers of electricity; the second, Michigan Mut. Liab. Ins. v. Fruehauf, 63 Mich. App. 109, 234 N.W.2d 172 (1975), and third, Jones v. Keetch," }, { "docid": "5332889", "title": "", "text": "PER CURIAM. Plaintiffs-appeilants brought this diversity action against defendant South Bend Lathe, Inc. and its insurer, defendant Travelers Indemnity Insurance Co., alleging a cause of action in strict products liability. The district court granted summary judgment for both defendants and denied plaintiffs’ motion to amend the complaint to add another defendant. Verhein v. South Bend Lathe, Inc., 448 F.Supp. 259 (E.D.Wis.1978). Plaintiffs appeal from the denial of leave to amend and from that part of the summary judgment granted in favor of Travelers. We affirm. I. According to the complaint, plaintiff Dennis Verhein was injured on May 7, 1973 when his hand was crushed in a punch press he was operating in the course of his employment. The punch press involved was a Johnson Press, made and sold to Dennis’ employer in 1961 by Bontrager Corporation. In 1962, Amsted Industries, Inc. bought those assets of Bontrager needed to manufacture and market Johnson presses. The record and briefs do not establish whether Bontrager continued to exist as a corporation. Amsted made Johnson presses from 1962 to 1975 through its South Bend Lathe Division (both Amsted and its South Bend Lathe Division will be referred to as Amsted). In 1975, Amsted sold the assets necessary to make Johnson presses to LWE, Inc. LWE then changed its name to South Bend Lathe, Inc. (hereinafter SBL; references to SBL indicate this corporation and not the division of Amsted). Having learned that SBL manufactures Johnson presses, Dennis and his wife Rose brought this products liability action on April 23, 1976. The complaint names SBL and Travelers as defendants. It alleges that SBL manufactured the press which injured Dennis and that Travelers is SBL’s liability insurer and is a proper party under Wisconsin’s direct action statute. After some discovery, defendants moved for summary judgment. Defendants’ motion for summary judgment was based on the fact that SBL did not make the press that injured Dennis and could not be held liable for the injury. Defendants attached the affidavit of an officer of Amsted which outlined the sequence of sales, from Bontrager to Amsted to SBL, of the" }, { "docid": "5864728", "title": "", "text": "Richards v. Georg Boat and Motors, Inc., 179 Ind.App. 102, 384 N.E.2d 1084 (1979); Abdul-Warith v. Arthur G. McKee and Co., 488 F.Supp. 306 (E.D.Pa.1980) aff’d 642 F.2d 440 (3d Cir.1981). For example, in Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890 (1970), Paper-mate Manufacturing Company bought a press from Improved Machinery, the manufacturer, and five years later sold it to Balido’s employer. Balido was injured while working with the machine and attempted to go against Papermate on a § 402A theory. The Court rejected her claim finding: [T]here was nothing to suggest that Papermate was a conduit for the production or distribution of Improved’s presses. Papermate was no more than a one time occasional seller who does not become subject to strict liability for manufacturing or design defects. Id. 105 Cal.Rptr. at 895; See generally 99 A.L.R.3d 651 (1980). In determining whether HOVIC is “engaged in the business of selling” hoists, this Court must look not to the volume of HOV-IC’s sales, but to whether they “carried on an established and well-recognized kind of business which has been a regularly maintained activity on its part.” Abdul-Warith, supra 488 F.Supp. at 311 (quoting Stewart v. Uniroyal, Inc., 72 Pa.D. & C.2d 179, 202 (1974), aff’d, 339 A.2d 815 (1975). In support of its motion, HOVIC submitted an affidavit of its comptroller who states that HOVIC is only engaged in “refining crude oil into petroleum products” and that HOVIC “is not in the business of selling, distributing, advertising, or maintaining any sales agency for hoists of any type, specifically ... those made by Sky Climber, Inc.” Affidavit in Support of HOVIC’s Motion; filed May 26, 1983. Plaintiffs counter asserting that the agreement between Litwin and HOVIC required HOVIC to supply “scaffolding” to Litwin. Litwin-HOVIC Agreement, p. 5; filed March 28,1983. As earlier stated, plaintiffs responded generally that HOVIC purchased and resold construction equipment regularly as a part of its general refining operation. However, no proof was offered to buttress this bare boned allegation. The Court’s posture in a summary judgment motion is to “resolve any doubt as to" }, { "docid": "23675001", "title": "", "text": "the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the condition that it was then defective, the burden is not sustained. Safe condition at the time of delivery by the seller will, however, include proper packaging, necessary sterilization, and other precautions required to permit the product to remain safe for a normal length of time when handled in a normal manner. Restatement (Second) of Torts § 402A, Comment g (emphasis added). By its express language, § 402A applies to sellers engaged in the business of selling the relevant product. There has been no contention that Harris does not fall within this category. The policy of § 402A is to protect the ultimate user for defects in goods caused by those who put such goods in commerce. Had Harris sold the used press manufactured by another, it would be liable if the product was defective at the time of sale. There is no reason why the fact that Harris was the manufacturer as well as the subsequent seller should change this result. Thus, we hold that under § 402A the relevant date in determining defective condition is the date of sale by a seller covered by the section, rather than the date of manufacture of the product. In order to determine whether the court’s ruling caused prejudicial error, it is necessary to consider the context in which the issue arose. It was Josephs’ contention that the press was defective because it did not have two jog buttons on the underside of the press requiring the simultaneous depression of both buttons, using both hands, in order to advance the cylinder. If the press had been designed in that manner, both hands would have been required to push the buttons, so that it would have been impossible for Josephs’ hand to have been caught in the moving cylinder. Josephs sought to prove this theory by the testimony of his expert witness, Stanley Jakubowski, who testified that the press was" }, { "docid": "22072370", "title": "", "text": "We vacated because resolution of the issue of defendant’s status under Louisiana law depended on a subsidiary showing, on which the affidavit was silent, that defendant or others in its industry customarily conducted drilling operations with their own employees, rather than subcontractors. The conclusory statement that Georgia-Pacific is not engaged in the business of selling used sawmill equipment, like the conclusory statement in Chavers, “offers no enlightenment” on matters that, in our view, are “essential to a proper disposition of the motion for summary judgment.” Id. at 318. See also Pitts v. Shell Oil Co., 463 F.2d 331, 334 (5th Cir.1972) (on issue whether plaintiff was employee or independent contractor, which depends on who has right to control the details of the work, self-serving conclusions of defendant’s affidavit cannot support summary judgment); Fowler v. Southern Bell Telephone & Telegraph, 343 F.2d 150, 154 (5th Cir.1965) (defendant’s sworn, conclusory statements, unsupported by specific facts, that they were acting within scope of employment could not support summary judgment). Absent the conclusory claim that Georgia-Pacific is not engaged in the business of selling sawmill trimmers, the affidavit cannot support the summary judgment. The affidavit leaves many material fact questions about Georgia-Pacific’s sales of used sawmill equipment unanswered. For example, Georgia-Pacific made no showing with respect to (1) the number of used equipment sales made by Georgia-Pacific; (2) the amount of revenue generated by those sales; (3) the number of employees or the extent of other corporate resources devoted to making the sales; or (4) the use of advertising or other marketing techniques to publicize the availability of used equipment for sale. While summary judgment may have been proper under the district court’s view of Texas law, under which these questions are immaterial, it cannot stand under our understanding of comment f. Since the affidavit leaves open the possibility that these questions will be answered in a manner favorable to Galindo, summary judgment for Georgia-Pacific was improper. Georgia-Pacific’s reliance on Bailey v. ITT Grinnell Corp., 536 F.Supp. at 84, is misplaced. In Bailey, defendant purchased a punch press, used it in its business for" }, { "docid": "1643048", "title": "", "text": "Mich. 670, 365 N.W.2d 176, 186 (1984); Smith v. E.R. Squibb & Sons, Inc., 69 Mich.App. 375, 245 N.W.2d 52, 56 (1976), aff'd, 405 Mich. 79, 273 N.W.2d 476 (1979) When the defendant is a non-manufacturing seller, however, the two analyses diverge. See Prentis, 365 N.W.2d at 186 n. 30 (“Thus ... the only time the distinction between implied warranty and negligence may have any significance in design defect cases, is in determining the liability of a seller who is not also the manufacturer of a product.”). Because the existence of a defect is generally determined by the negligent conduct of the manufacturer, a retailer may be held liable for breaching its implied warranty of merchantability by selling a defective product, even if the retailer’s conduct is wholly free from negligence. See Johnson v. Chrysler Corp., 74 Mich.App. 532, 254 N.W.2d 569, 571 (1977) (reversing a directed verdict in favor of the retailer of a defective power punch press, even though the retailer was not negligent); Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129, 134 (1965) (holding that a breach of implied warranty claim relating to the sale of a defective shotgun shell could be established without proof of negligence on the part of the retailer). Cf. Marcon v. Kmart Corp., 573 N.W.2d 728 (Minn.Ct.App.1998) (affirming a verdict against the non-negligent seller of a sled, which was found to be defective because it lacked a warning advising riders not to kneel). As noted above, Hollister has not argued at any stage of this litigation that her implied warranty claim requires distinct treatment from her negligence claim. Hollister’s implied warranty claim, however, has been properly raised both below and on appeal — it was simply analyzed under the wrong legal standard. Ultimately, it is the district court’s responsibility to apply the proper legal standard, regardless of the misconceptions by the parties. See Industrial Development Bd. v. Fuqua Indus. Inc., 523 F.2d 1226, 1240 (5th Cir. 1975) (“[A] trial court has the ultimate responsibility to apply the law to the uncontested facts before it.”); Troupe v. Chicago, D. &" }, { "docid": "1643047", "title": "", "text": "are judged by the same standard, ie., a pure negligence risk-utility test.” Thus, Hollister has argued her two causes of action as if the negligence standard governed both. Hollister’s and the district court’s confusion as to the appropriate legal standard most likely stems from the fact that, in cases where a seller is also the manufacturer, Michigan courts have observed that claims of negligence and breach of implied warranty are, for all intents and purposes, identical. The reason for this confluence is that a plaintiff alleging breach of implied warranty on the part of a seller must show that the purchased product was defective. That showing, in turn, requires proof that the product’s manufacturer acted negligently, typically by omitting a safety feature or in failing to give warning of a latent danger. A suit for breach of implied warranty against a seller who is also the manufacturer will therefore require the same showing of negligence on the defendant’s part as an ordinary products liability suit against a manufacturer. See Prentis v. Yale Mfg. Co., 421 Mich. 670, 365 N.W.2d 176, 186 (1984); Smith v. E.R. Squibb & Sons, Inc., 69 Mich.App. 375, 245 N.W.2d 52, 56 (1976), aff'd, 405 Mich. 79, 273 N.W.2d 476 (1979) When the defendant is a non-manufacturing seller, however, the two analyses diverge. See Prentis, 365 N.W.2d at 186 n. 30 (“Thus ... the only time the distinction between implied warranty and negligence may have any significance in design defect cases, is in determining the liability of a seller who is not also the manufacturer of a product.”). Because the existence of a defect is generally determined by the negligent conduct of the manufacturer, a retailer may be held liable for breaching its implied warranty of merchantability by selling a defective product, even if the retailer’s conduct is wholly free from negligence. See Johnson v. Chrysler Corp., 74 Mich.App. 532, 254 N.W.2d 569, 571 (1977) (reversing a directed verdict in favor of the retailer of a defective power punch press, even though the retailer was not negligent); Piercefield v. Remington Arms Co., 375 Mich. 85, 133" }, { "docid": "11339905", "title": "", "text": "evidence in the record and all inferences reasonably arising therefrom. We must determine whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief. Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir.1969). Section 402A of the Restatement (Second) of Torts, which has been adopted by Pennsylvania courts, imposes strict liability on the seller of any product in a defective condition unreasonably dangerous to the user or consumer. Overpeck v. Chicago Pneumatic Tool Co., 823 F.2d 751, 753 (3d Cir.1987). Under § 402A, even if properly designed, a product may be found to be defective and unreasonably dangerous if its manufacturer fails to warn the user or consumer of latent dangers in the product’s use or operation. Id. There is no question that, under Pennsylvania law, a manufacturer may be liable for failure to warn even when a product is perfectly designed and manufactured. Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982). To submit a strict liability claim to the jury under § 402A, the plaintiff must offer evidence that the product was defective, that the defect existed while the product was still in the control of the manufacturer or retailer, and that the defect was the proximate cause of the plaintiffs injuries. Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 685 F.2d 94, appeal after remand, 717 F.2d 52 (3d Cir.1982). The record does not reveal the reasoning of the district court in directing the verdict. The defendant offered two grounds for its motion. The first was that there was no evidence that a projectile hazard existed until the press had been substantially changed and subjected to abnormal use and-faulty maintenance by the plaintiffs employer. Second, the defendant argued that the plaintiff had failed to establish a prima facie case on the element of causation of the plaintiffs injuries through the failure to warn. We examine each argument in turn. A.' The record does contain evidence that the plaintiffs employer and the operators of the press knowingly used the press with a" }, { "docid": "17371743", "title": "", "text": "demand that the product be accompanied by appropriate explanatory or cautionary language. See Hargis v. Doe, 3 Ohio App.3d 36, 443 N.E.2d 1008 (1981). The appellants contend that the bridge kit falls into the latter category and that the defendants were negligent in failing to include proper instructions and warnings. Before we review the adequacy of the precautions actually taken, however, we must address the district court’s determination that the Searls line of cases absolves the defendants of any duty to warn due to their status as component part manufacturers. We turn first to Temple v. Wean, the Ohio Supreme Court’s decision upon which the Searls court based its ruling. In Temple, the plaintiff was injured by a mechani cal press that was accidentally activated when a falling object came to rest simultaneously on its two operating buttons. After adopting section 402A of the RESTATEMENT (SECOND) OP TORTS, the court went on to consider whether the manufacturer of the operating button mechanism could be held strictly liable for failing to warn the press manufacturer that accidental depression of the buttons could result in injury to the operator. The court noted that the American Law Institute had expressed “no opinion” in section 402A as to whether a seller of a component part could be held strictly liable for a defect in an assembled product. In order to resolve this ambiguity, the court then wrote: [T]he obligation that generates the duty to warn does not extend to the speculative anticipation of how manufactured components, not in and of themselves dangerous or defective, can become potentially dangerous dependent upon the nature of their integration into a unit designed and assembled by another. 364 N.E.2d at 272. Having determined that the plaintiffs had no strict liability claim, the court went on to consider whether they could be held liable for negligence. After explaining that the purchasers of the machine had moved the operating buttons from a safe vertical position to a dangerous horizontal one, the court stated, “[i]t is evident that [the defendants] did not know, nor could they have known, of a defect" } ]

[ { "docid": "19522574", "title": "", "text": "formalized and its effects felt in a concrete way by the challenging parties.\" Abbott Labs. v. Gardner , 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). To be fit for judicial review, a controversy should be presented in a \"clean-cut and concrete form.\" Miller , 462 F.3d at 319 (citation omitted). This occurs when the action is \"final and not dependent on future uncertainties or intervening agency rulings.\" Franks v. Ross , 313 F.3d 184, 195 (4th Cir. 2002) (citation omitted). On the other hand, just as a plaintiff cannot assert standing based on an alleged injury that lies at the end of a \"highly attenuated chain of possibilities,\" Clapper , 568 U.S. at 410, 133 S.Ct. 1138, a plaintiff's claim is not ripe for judicial review \"if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.\" Scoggins , 718 F.3d at 270 (quoting Texas v. United States , 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) ). The two claims that South Carolina advances before this Court rest on the premise that South Carolina will be the permanent repository of the weapons-grade nuclear material currently stored at the Savannah River Site. But, numerous \"contingent future events,\" id. , must occur before South Carolina becomes the permanent repository of the nuclear material, see supra Part II.A. In particular, the Dilute and Dispose method must prove unworkable. The Department of Energy must fail to identify an alternative method of disposal and breach its commitment to dispose of the waste. And Congress or the courts must set aside or refuse to enforce the statutory mechanisms currently in place to ensure timely removal of the nuclear material. All of these \"future uncertainties,\" Franks , 313 F.3d at 195, lead us to conclude that the two claims at issue are not ripe for review at this time-at least as presented by South Carolina. Accordingly, the ripeness doctrine provides an" } ]

[ { "docid": "23021686", "title": "", "text": "of a foster child to the Does on any grounds, the District Court concluded that the Does’ racial discrimination claims were not ripe. See Doe II, 80 F.Supp.2d at 446. On appeal, the Does argue that the District Court erred. We exercise plenary review over whether a cause of action is ripe. Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 n. 8 (3d Cir.1988). Upon review, we conclude that the District Court’s ripeness determination was incorrect. The ripeness doctrine helps determine whether a dispute or claim has matured to a point warranting judicial intervention. 13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3532 (2d ed. 1984). The doctrine exists “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect ... agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). To evaluate ripeness, we must look at the “fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotations and citation omitted). Here, the record shows ripe claims. The County enacted the infectious disease policy, and, on December 18, 1998, sent a letter informing the Does that they would not be approved as foster parents without disclosure of Adam’s HIV status and without consent of the parents of any prospective foster child. During the application process, CYS officials allegedly made statements that might support an inference of underlying racial motivations — in particular, Rice allegedly stated" }, { "docid": "19565407", "title": "", "text": "belated ripeness argument would fail on the merits. As the Supreme Court has explained, the ripeness doctrine \"is designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.\" Ohio Forestry Ass'n, Inc. v. Sierra Club , 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (citing Abbott Laboratories v. Gardner , 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (internal quotation marks omitted) ). To evaluate a claim's ripeness for judicial review, therefore, a court must consider three factors: \"(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.\" Id. at 733, 118 S.Ct. 1665. In these cases, as Defendants all but concede, all three factors weigh heavily in favor of judicial review now. First, there is no question that delayed review would cause hardship to Plaintiffs. As discussed above, the NGO Plaintiffs are already suffering harm from the addition of the citizenship question due to the diversion of valuable resources. And more broadly, as the Court explained in denying Defendants' attempts to stay trial, time is of the essence. See New York v. U.S. Dep't of Commerce , 345 F.Supp.3d 444, 452-55, No. 18-CV-2921 (JMF), 2018 WL 5791968, at *6-*7 (S.D.N.Y. Nov. 5, 2018). According to Defendants themselves, the Census Bureau \"need[s] to begin printing the 2020 census questionnaire\" in June 2019. Docket No. 540, at 3. In light of that deadline, Defendants concede that even with this Court issuing a ruling now, \"it is extremely unlikely that full merits briefing and argument in the Second Circuit, let alone the Supreme Court, would be possible.\" Id. It follows that dismissing the case as unripe pending OMB clearance later this year would almost certainly preclude Plaintiffs from obtaining a final ruling on" }, { "docid": "19745108", "title": "", "text": "Wildlaw’s standing to bring this suit, the Forest Ser vice contends that Wildlaw’s claims are not ripe for adjudication. As the Eleventh Circuit has noted, ripeness and standing are often conflated, as both doctrines require that the injury complained of be imminent. Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir.1996). The difference is that the standing inquiry focuses on whether the plaintiff is a proper party to bring suit, whereas the ripeness inquiry focuses on “whether this is the correct time for the complainant to bring the action.” Id. Accordingly, the court will now assess whether the timing of the instant litigation “causes justiciability problems.” Id. The ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). As the Supreme Court has stated many times, the purpose of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), quoted in, e.g., Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003), and Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998); see also Ouachita Watch League, 463 F.3d at 1174. “To decide whether an issue is ripe for judicial review, courts will examine both the fitness of the issue for judicial decision and the hardship on the parties if a court withholds consideration.” Ouachita Watch League, 463 F.3d at 1174 (citing Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507); see also Ohio Forestry Ass’n, 523 U.S. at 733, 118 S.Ct. 1665. a. NEPA Claims (Counts 1-6) Are Ripe for Adjudication With respect to" }, { "docid": "21844847", "title": "", "text": "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Supreme Court has instructed district courts to consider whether a dispute is fit for judicial review and whether withholding court consideration would cause hardship to the parties. Id. A claim involving an administrative agency action is ripe only when the agency action is final. 5 U.S.C. § 704. If the dispute concerns offenses that have not yet occurred, the plaintiff must show that the probability of the future event occurring is of “sufficient immediacy and reality” to provide a concrete set of circumstances on which the court can rule. Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). C.The Court Denies the Plaintiffs’ Motion to Lift the Stay To determine whether the plaintiffs’ instant motion to lift the stay is ripe, the court must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Texas v. United States, 523 U.S. 296, 300-301, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998); Abbott Laboratories, 387 U.S. at 136, 87 S.Ct. 1507. Where an administrative agency’s proceedings are ongoing, “depending on the agency’s future actions ... review [of the case] now may turn out to [be] unnecessary” later and could also result in depriving the agency of the opportunity to apply its expertise. Pfizer, Inc. v. Dep’t of Health and Human Servs., 182 F.3d 975, 978 (D.C.Cir.1999) (denying a motion for review of a pending petition filed with an agency because it was not ripe) (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Edüd 921 (1998) (finding that the controversy was not ripe for review because judicial intervention would inappropriately interfere with further administrative action)). As with the case at" }, { "docid": "16624422", "title": "", "text": "136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The fitness prong “safeguards against judicial review of hypothetical or speculative disagreements.” Nebraska Pub. Power Dist., 234 F.3d at 1038. See Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1291 (11th Cir.2010) (“The fitness prong is typically concerned with questions of ‘finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed.’”), quoting Harrell v. The Florida Bar, 608 F.3d 1241, 1258 (11th Cir.2010). The hardship prong asks whether delayed review “inflicts significant practical harm” on the plaintiffs. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). See Nebraska Pub. Power Dist., 234 F.3d at 1039 (finding that “an issue may be ripe” when delayed review results in “substantial financial risk, or will force parties to modify their behavior significantly”). “The touchstone of a ripeness inquiry is whether the harm asserted has ‘matured enough to warrant judicial intervention.’ ” Vogel, 266 F.3d at 840, quoting Paraquad, Inc. v. St. Louis Hous. Auth., 259 F.3d 956, 958 (8th Cir.2001). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998), quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). The plaintiffs need not “await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923). The Supreme Court affirmed these principles in a similar challenge to exclusive representation. In Harris v. Quinn, — U.S. -, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014), an Illinois statute allowed “Disabilities Program” workers to elect an exclusive representative. One election was unsuccessful: workers" }, { "docid": "7861187", "title": "", "text": "a “threshold question! ] of justiciability.” Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 195 (4th Cir. 2013) (Lansdowne); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (explaining that “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so”). The issue of ripeness entails an analysis considering the fitness of the issues before the court, as well as the hardship that the parties will experience if the court withholds consideration of the dispute. Lansdowne, 713 F.3d at 197-98 (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir.2006)). “The doctrine of ripeness prevents judicial consideration of issues until a controversy is presented in clean-cut and concrete form.” Miller, 462 F.3d at 318-19 (citation and internal quotation marks omitted). As explained by the Supreme Court, the purpose of the ripeness doctrine is to require courts to avoid taking premature judicial action, thereby preventing them from becoming entangled in “abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). A case is fit for adjudication “when the action in controversy is final and not dependent on future uncertainties.” Miller, 462 F.3d at 319; Franks v. Ross, 313 F.3d 184, 195 (4th Cir.2002). Stated alternatively, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (citation and internal quotation marks omitted); see also Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997) (in determining whether a claim is ripe, we “decide whether the issue is substantively definitive enough to be fit for judicial decision and whether hardship will result from withholding court consideration”). An issue becomes" }, { "docid": "10672152", "title": "", "text": "conceded at the hearing that this issue is not ripe, see Hearing Tr. at 24:1-6, and indeed it is not. Article III of the United States Constitution limits the jurisdiction of the federal courts to resolving “Cases” and “Controversies,” U.S. Const, art. Ill, § 2, cl. 1, and “ ‘does not allow a litigant to pursue a cause of action to recover for an injury that is not “certainly impending.” ’ ” Full Value Advisors, LLC v. SEC, 633 F.3d 1101, 1106 (D.C.Cir.2011) (quoting Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C.Cir.1999) (internal quotation omitted)). The doctrine of ripeness exists to ensure compliance with Article III and “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “In order to determine whether a controversy is ripe, a court must ‘evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” Pfizer, Inc. v. Shalala, 182 F.3d 975, 978 (D.C.Cir. 1999) (quoting Texas v. United States, 523 U.S. 296, 301, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). In terms of fitness, a claim “ ‘is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Id. (quoting Texas, 523 U.S. at 300, 118 S.Ct. 1257). In other words, the “‘fitness’ prong of the analysis generally addresses ‘whether the issue is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency’s action is sufficiently final.’ ” Teva Pharmaceuticals USA, Inc. v. Sebelius, 595 F.3d 1303, 1308 (D.C.Cir.2010) (quoting National Ass’n of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459, 463 (D.C.Cir. 2006)). Here Plaintiffs’ claim is wholly contingent upon a hypothetical future event: NPS’s making a decision to invoke § 1.5, close all or a" }, { "docid": "19522572", "title": "", "text": "the Savannah River Site decades in the future . That distinction is particularly meaningful because, as explained above, numerous contingencies must occur in order for the plutonium to remain in South Carolina after 2046, the year when South Carolina's alleged injury will mature. In sum, the single theory of injury that South Carolina relies on to support both of its claims is too speculative at this juncture to support Article III standing. The district court, therefore, was without jurisdiction to enter its preliminary injunction premised on those two claims. B. For reasons similar to those that lead us to find that South Carolina lacks standing, we also find that the two claims at issue fail on ripeness grounds. Like standing, the ripeness doctrine \"originates in the 'case or controversy' constraint of Article III.\" Scoggins v. Lee's Crossing Homeowners Ass'n , 718 F.3d 262, 269 (4th Cir. 2013) (citations omitted). \"Analyzing ripeness is similar to determining whether a party has standing.\" Miller v. Brown , 462 F.3d 312, 319 (4th Cir. 2006). \"Although the phrasing makes the questions of who may sue and when they sue seem distinct, in practice there is an obvious overlap between the doctrines of standing and ripeness.\" Id. (quoting Erwin Chemerinsky, Federal Jurisdiction § 2.4 (4th ed. 2003) ). As with standing, ripeness is a question of subject matter jurisdiction. See Sansotta v. Town of Nags Head , 724 F.3d 533, 548 (4th Cir. 2013) (citation omitted). The question of whether a claim is ripe \"turns on the 'fitness of the issues for judicial decision' and the 'hardship to the parties of withholding court consideration.' \" Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n , 461 U.S. 190, 201, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) (citation omitted). In the context of claims challenging agency actions, like the two at issue, the purpose of the ripeness doctrine is \"to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been" }, { "docid": "1434568", "title": "", "text": "rather than further analyzing the standing issue, we turn to the question of ripeness. III. The district court did not address ripeness, although the issue was raised and briefed below. The ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Accordingly, we may decide the issue even when it was not reached by the district court. See Utah v. U.S. Dep’t of the Interior, 210 F.3d 1193, 1196 n. 1 (10th Cir.2000). The doctrine of ripeness prevents courts “from entangling themselves in abstract disagreements over administrative policies,” while also “protecting] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); see also Nat’l Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). “In evaluating ripeness the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Initiative & Referendum Inst., 450 F.3d at 1097 (internal quotation marks omitted). In deciding whether an agency’s decision is ripe for judicial review, we examine “both the ‘fitness of the issues for judicial decision’ and the ‘hardship to the parties of withholding court consideration.’ ” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507); see also Tarrant Reg’l Water Dist. v. Herrmann, 656 F.3d 1222, 1249 (10th Cir.2011). In doing so, we may consider: (1) whether the issues in the case are purely legal; (2) whether the agency action involved is “final agency action” within the meaning of the Administrative Procedure" }, { "docid": "11291183", "title": "", "text": "at 33 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). A claim is not ripe for adjudication if it rests upon “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation omitted)); Friends of Marolt Park v. United States Dep’t of Transp., 382 F.3d 1088, 1094 (10th Cir.2004) (ruling that a challenge to a proposed highway was not ripe, stating “there is nothing concrete about a highway that may never be built.”). The First Circuit has ruled that ripeness turns on the “fitness of the issues for judicial consideration and the hardship to the parties of withholding court consideration.” W.R. Grace & Co. v. United States EPA 959 F.2d 360, 364 (1st Cir. 1992) (citations omitted). The Supreme Court has laid out three factors for consideration of this issue: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). Thus, in the context of a review of agency action, ripeness protects “agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. (quoting Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507). Claims are fit for review if the agency action is final, and the issue presented is “purely legal, as opposed to factual.” W.R. Grace, 959 F.2d at 364. A purely legal issue “will not be clarified by further factual development.” Thomas, 473 U.S. at 581, 105 S.Ct. 3325. Considerations of fitness “typically involve! ] subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends upon facts that" }, { "docid": "91569", "title": "", "text": "555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Moreover, the judicial power does not extend to hypothetical disputes, and federal courts may not “give opinions advising what the law would be upon a hypothetical state of facts.” Chafin v. Chafin, — U.S. —, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (alterations and quotation marks omitted). And in order to be justiciable, a claim must be ripe for review. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). We see two defects in William’s requested relief. First, Williams runs afoul of the rule that “a litigant may not use a declaratory-judgment action to obtain piecemeal adjudication of defenses that would not finally and conclusively resolve the underlying controversy.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 n. 7, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). Williams requests declarations (or injunctions) determining rights and defenses available to BASF and Cahill in future proceedings. This relief, however, invites the District Court to wade into a legal conflict that is not before it — the viability of a particular plaintiffs asbestos-injury claim against BASF. Under Article III, plaintiffs may not seek a judgment that “would merely determine a collateral legal issue governing certain aspects of then-pending or future suits.” Calderon v. Ashmus, 523 U.S. 740, 747, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). A declaration from the District Court about the preclusive effect of past judgments, for example, might determine whether BASF’s past judgments were “valid” and, therefore, preclusive. See, e.g., Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536, 541 (1995) (noting that a judgment must be valid and final in order to have preclusive effect). But that declaration would not decide BASF’s liability to a particular plaintiff for a particular asbestos injury. In this way, Williams’s request resembles that of a prisoner who sued to prevent the state from invoking an affirmative defense in an anticipated, but unfiled, § 1983 claim. Ashmus, 523 U.S. at 747-49,118 S.Ct. 1694. In this case and in that one, the" }, { "docid": "8691828", "title": "", "text": "legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, [are] derived from historical relationships and explicitly designed to help only Indians.”); see also Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942) (“Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, [the government] has charged itself with moral obligations of the highest responsibility and trust.” (footnote omitted)). To the extent that the Trust Obligation claim is one and the same as the Leasing Act claim, Plaintiffs have established standing for the same reasons. VI. Ripeness Whereas standing asks “who” may bring a claim, ripeness concerns “when” a claim may be brought. R.I. Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 33 (1st Cir.1999). With respect to administrative decisions, the ripeness doctrine seeks “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). To determine whether a particular claim is ripe, we generally evaluate “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Doe v. Bush, 323 F.3d 133, 138 (1st Cir.2003) (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507). Plaintiffs’ remaining claims — aside from the Trust Obligation claim — allege that the BIA failed to comply with various federal laws before approving the Quoddy Bay lease. These claims of procedural injury are clearly ripe under Ohio Forestry Ass’n, Inc. v. Sierra Club: “[A] person with standing who is injured by a failure to comply with [statutory] procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.” 523 U.S. 726, 737, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The BIA now" }, { "docid": "6694616", "title": "", "text": "(2016) (alteration in original) (quoting U.S. Const, art. III, § 1); see also Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (discussing “the proper — and properly limited — role of the courts in a democratic society”). Two of the limitation’s manifestations are the justiciability doctrines of standing and ripeness, which are interrelated; each is rooted in Article III. See Susan B. Anthony List v. Driehaus (“SBA List”), — U.S. -, 134 S.Ct. 2334, 2341 n.5, 189 L.Ed.2d 246 (2014) (“[T]he Article III standing and ripeness issues in this case ‘boil down to the same question.’” (quoting MedImmune, Inc, v. Genentech, Inc., 549 U.S. 118, 128 n.8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007))); Warth, 422 U.S. at 499 n.10, 95 S.Ct. 2197 (noting the “close affinity” between standing, ripeness, and mootness); see also Richard H. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 219-20 (7th ed. 2015) (observing that ripeness “substantially replicate[s] the standing inquiry” in many respects). This case implicates both doctrines. A. Standing The “[fjirst and foremost” concern in standing analysis is the requirement that the plaintiff establish an injury in fact, Spokeo, 136 S.Ct. at 1547 (alteration in original) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)), which “helps to ensure that the plaintiff has a ‘personal stake in the outcome of the controversy,’ ” SBA List, 134 S.Ct. at 2341 (quoting Warth, 422 U.S. at 498, 95 S.Ct. 2197). To satisfy Article III, the injury “must be ‘concrete and particularized’ and ‘actual or imminent, not “conjectural” or “hypothetical.” ’ ” Id. (quoting Lujan, 504 U.S. at 560,112 S.Ct. 2130). In certain circumstances, “the threatened enforcement of a law” may suffice as an “imminent” Article III injury in fact. Id. at 2342. The rationale for pre-enforcement standing is that a plaintiff should not have to “expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415" }, { "docid": "19493654", "title": "", "text": "the Court can consider CAI's claims, the Court will first consider their motion. A. State Prosecutors' Motion for Summary Judgment 1. Standing and Ripeness State Prosecutors argue that CAI cannot satisfy the requirements of standing doctrine or ripeness doctrine because CAI did not face a credible threat of prosecution before it brought suit. (ECF No. 101 at 6-20.) CAI contends that it does have standing to sue on the ground that such a threat exists. (ECF No. 117 at 4-11.) The Court observes that \"the Article III standing and ripeness issues in this case 'boil down to the same question.' \" See Susan B. Anthony List v. Driehaus , --- U.S. ----, 134 S.Ct. 2334, 2341 n.5, 189 L.Ed.2d 246 (2014) (quoting MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 128 n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ). Accordingly, the Court will consider State Prosecutors' arguments concerning standing and ripeness simultaneously, characterizing the discussion as one involving \"standing.\" Article III limits the jurisdiction of federal courts to cases and controversies. U.S. Const. art. III, § 2. Standing doctrine is \"[o]ne element of the case-or-controversy requirement,\" and a plaintiff that invokes federal jurisdiction must accordingly establish standing to sue. Clapper v. Amnesty Int'l , 568 U.S. 398, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). A plaintiff has standing upon demonstrating an injury that is \"concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.\" Id. at 1147. A plaintiff has standing to bring a \"pre-enforcement challenge\" to a statute when the plaintiff \"faces a credible threat of prosecution\" under that law. N.C. Right to Life, Inc. v. Bartlett , 168 F.3d 705, 710 (4th Cir. 1999). Further, when \"the State has not disclaimed any intention of enforcing\" the challenged statute, a plaintiff \"need not actually violate\" that statute, \"or be proactively threatened with prosecution prior to violation, in order to have standing to challenge its constitutionality.\" Does 1-5 v. Cooper , 40 F.Supp.3d 657, 671-72 (M.D.N.C. 2014) ; see MedImmune, Inc. , 549 U.S. at 129, 127 S.Ct." }, { "docid": "91568", "title": "", "text": "injunctive relief because she had not presented the court with a justiciable controversy. With respect to the relief targeted at solely legal issues anticipated in future cases, we affirm. A plaintiff must establish a justiciable case or controversy with respect to each form of relief he or she seeks. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-03, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Thus, even when a plaintiff has a claim for damages, in order to obtain prospective relief, he or she must establish standing to do so. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-11, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); see also 28 U.S.C. § 2201 (Declaratory Judgment Act remedies). “To have standing to sue under Article III,” a plaintiff must identify “(1) a cognizable injury that is (2) causally connected to the alleged conduct and is (3) capable of being redressed by a favorable judicial decision.” Pa. Family Institute, Inc. v. Black, 489 F.3d 156, 165 (3d Cir.2007); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Moreover, the judicial power does not extend to hypothetical disputes, and federal courts may not “give opinions advising what the law would be upon a hypothetical state of facts.” Chafin v. Chafin, — U.S. —, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (alterations and quotation marks omitted). And in order to be justiciable, a claim must be ripe for review. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). We see two defects in William’s requested relief. First, Williams runs afoul of the rule that “a litigant may not use a declaratory-judgment action to obtain piecemeal adjudication of defenses that would not finally and conclusively resolve the underlying controversy.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 n. 7, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). Williams requests declarations (or injunctions) determining rights and defenses available to BASF and Cahill in future proceedings. This relief, however, invites the District Court to wade into a legal conflict" }, { "docid": "15316033", "title": "", "text": "Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979). In other words, the factual allegations in the plaintiffs complaint must be presumed true, and the plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). At the same time, however, the Court need not accept as true “a legal conclusion couched as a factual allegation,” nor need it accept inferences that are unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). b. Ripeness The Court begins with the Department’s ripeness argument because D.C. Circuit precedent more directly addresses the current situation — a NEPA challenge to the adequacy of an EIS— through the ripeness lens. “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). To decide whether an agency’s decision is ripe for judicial review, courts must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). “Like the standing doctrine, the ripeness requirement dictates that courts go beyond constitutional minima and take into account prudential concerns which in some eases may mandate dismissal even if there is not a constitutional bar to the exercise of our jurisdiction.” Wyo. Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C.Cir.1999)." }, { "docid": "19493653", "title": "", "text": "trial.\" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). \"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.\" Id. at 249-50, 106 S.Ct. 2505 (citations omitted). When reviewing a motion for summary judgment, the court must \"resolve all factual disputes and any competing, rational inferences in the light most favorable\" to the nonmoving party. Rossignol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003). When, as here, a court has before it cross-motions for summary judgment, \"the court must review each motion separately on its own merits\" to determine whether each party is entitled to judgment as a matter of law. Id. III. DISCUSSION State Prosecutors have moved for summary judgment on jurisdictional grounds and on CAI's right of association claim only. (ECF No. 100.) CAI and the State Bar have each moved for summary judgment on each of the six claims brought by CAI. (ECF Nos. 103, 112.) As State Prosecutors raise the threshold issue of whether the Court can consider CAI's claims, the Court will first consider their motion. A. State Prosecutors' Motion for Summary Judgment 1. Standing and Ripeness State Prosecutors argue that CAI cannot satisfy the requirements of standing doctrine or ripeness doctrine because CAI did not face a credible threat of prosecution before it brought suit. (ECF No. 101 at 6-20.) CAI contends that it does have standing to sue on the ground that such a threat exists. (ECF No. 117 at 4-11.) The Court observes that \"the Article III standing and ripeness issues in this case 'boil down to the same question.' \" See Susan B. Anthony List v. Driehaus , --- U.S. ----, 134 S.Ct. 2334, 2341 n.5, 189 L.Ed.2d 246 (2014) (quoting MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 128 n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ). Accordingly, the Court will consider State Prosecutors' arguments concerning standing and ripeness simultaneously, characterizing the discussion as one involving \"standing.\" Article III limits the jurisdiction of federal courts to cases and controversies. U.S." }, { "docid": "23043538", "title": "", "text": "is essential to the exercise of our judicial function. Whether or not a discriminatory barrier will be erected in the future by PUSD against any student applicant' (let alone one of the plaintiffs) in the form of a race-based admissions policy is too speculative to satisfy the plaintiffs’ burden of demonstrating a realistic and imminent danger of direct injury as a result of the PUSD policy. Accordingly, we dismiss Scott’s claims for lack of standing. B. Ripeness We are further persuaded that, even if Scott were found to have established injury in fact, we would still dismiss her equal protection claim based on the prudential considerations of our ripeness jurisprudence. “[R]ipeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). “In ‘measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.’ ” Thomas, 220 F.3d at 1139 (quoting Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L.Rev. 153, 172 (1987)). As a prudential matter, we will not consider a claim to be ripe for judicial resolution “if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may hot occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agrie. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)); accord Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th Cir.1999). The “basic rationale” of the ripeness doctrine is “to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs., 387 U.S. at 148, 87 S.Ct. 1507. To determine ripeness, we must consider “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. The prudential considerations of ripeness are" }, { "docid": "3140026", "title": "", "text": "in abstract disagreements’ ” in violation of Article Ill’s case or controversy requirement. Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013) (quoting Abbott Labs, v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). As the Supreme Court has put it, “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). In line with these principles, a claim is ripe only if the party bringing suit can show both that the issues raised aré fit for judicial decision at the time the suit: is filed and that the party bringing suit will suffer hardship if “court, consider,ation” is withheld, McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507). In considering the fitness prong of the ripeness inquiry, we have emphasized that a “claim is not ripe for adjudication if it rests upon contingent future events, that may not occur as anticipated, or indeed, may not occur at all.” City of Fall River, 507 F.3d at 6 (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). In a similar vein, we have explained that “[t]he conditional, nature of the claims” strongly counsels against a finding of hardship. McInnis-Misenor, 319 F.3d at 73. The burden to prove ripeness is on the party seeking jurisdiction. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 25 (1st Cir. 2007). The pleading standard for satisfying the factual predicates for proving jurisdiction is the same as applies under Rule 12(b)(6)—that is, the plaintiffs must “state a claim to relief that is plausible on its face.” See Román-Oliveras v. P.R." }, { "docid": "15316034", "title": "", "text": "it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). To decide whether an agency’s decision is ripe for judicial review, courts must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). “Like the standing doctrine, the ripeness requirement dictates that courts go beyond constitutional minima and take into account prudential concerns which in some eases may mandate dismissal even if there is not a constitutional bar to the exercise of our jurisdiction.” Wyo. Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C.Cir.1999). “The ‘primary focus’ of the prudential aspect of the ripeness doctrine is to balance ‘the petitioner’s interest in prompt consideration of allegedly unlawful agency action against the agency’s interest in crystallizing its policy before that policy is subjected to judicial review and the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.’” Id. at 49 (quoting Eagle-Picher Indus, v. EPA 759 F.2d 905, 915 (D.C.Cir.1985)). The D.C. Circuit has concluded that NEPA challenges are not ripe for review until agency decision-making has “reached that ‘critical stage’ where an ‘irreversible and irretrievable commitment of resources’ has occurred that will adversely affect the environment.” Ctr. for Biological Diversity v. Dep’t of Interior, 563 F.3d 466, 480 (D.C.Cir.2009) (quoting Wyo. Outdoor Council, 165 F.3d at 49). Thus, the court held that a NEPA claim was not ripe when the Forest Service had authorized oil and gas leasing on certain lands, but had not yet actually issued any leases. Wyo. Out door Council, 165 F.3d at 49-50. Likewise, the court concluded that a NEPA" } ]

[ { "docid": "12427051", "title": "", "text": "strike the count under Rule 12(f), Fed. R.Civ.P. (“Rule 12(f)”), for failure to comply with Rule 9(b), Fed.R.Civ.P. (“Rule 9(b)”). The CMCC defendants submit that the counterclaim complies with Rule 9(b). This court agrees. Although the Federal Circuit has not directly addressed the applicability of Rule 9(b) to inequitable conduct claims, the majority of courts reaching the issue require such claims to satisfy Rule 9(b)’s particularity requirement. See Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. 49, 51 (D.Mass.1998) (collecting cases holding Rule 9(b) applicable to inequitable conduct claims); Samsung Electronics Company, Limited v. Texas Instruments, Inc., 1996 WL 343330 at * 2 n. 3 (N.D.Tx.1996) (same). Two justifications militate in favor of applying Rule 9(b) to an inequitable conduct claim. First, there is the Federal Circuit’s expressed concern about the “habit of charging inequitable conduct in almost every major patent case.” Burlington Industries, Inc. v. Dayco Corporation, 849 F.2d 1418, 1422 (Fed.Cir.1988) (describing the habit as “an absolute plague”). Stricter pleading requirements “might act as a check on such abuses.” Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. at 51. Second, Rule 9(b) expressly governs fraud claims and an inequitable conduct claim is markedly similar to a fraud claim. Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. at 51 (describing inequitable conduct claim as “a form of fraud”). Succinctly stated, “Inequitable conduct requires that the patentee withheld material information from the patent examiner or submitted false material information, with the intent to deceive or mislead the examiner into granting the patent.” Upjohn Company v. Mova Pharmaceutical Corporation, 225 F.3d 1306, 1312 (Fed.Cir.2000). Following the lead of the majority view, this court similarly concludes that Rule 9(b) applies to the inequitable conduct count in the counterclaim. In matters of procedure not unique to patent law, the Federal Circuit applies the law of the forum’s circuit court of appeals. Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. at 51 n. 1 (citing Panduit Corporation v. All States Plastic Manufacturing, Inc., 744 F.2d 1564, 1574-1575 (Fed.Cir.1984)). Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or" } ]

[ { "docid": "23033433", "title": "", "text": "the information already of record in the prosecution history of the '685 patent, and it refutes, or is inconsistent with, a position taken by Exergen in asserting an argument of patentability. SAAT is informed and believes, and therefore alleges, that the misrepresentation and omission were made with the intent to deceive the PTO to issue the '685 patent. Answer ¶¶ 4CM6. SAAT argues that its allegations pass muster under the First Circuit’s “time, place, and content” test for Rule 9(b) pleadings, citing McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980). But see Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir.2004) (requiring identification of “the who, what, where, and when of the allegedly false or fraudulent representation”). Contrary to SAAT’s suggestion, however, we apply our own law, not the law of the regional circuit, to the question of whether inequitable conduct has been pleaded with particularity under Rule 9(b). See Cent. Admixture, 482 F.3d at 1356 (stating that whether inequitable conduct has been adequately pleaded is a question of Federal Circuit law because it “pertains to or is unique to patent law”). Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “[Ijnequitable conduct, while a broader concept than fraud, must be pled with particularity” under Rule 9(b). Ferguson Beauregard/Logic Controls, Div. of Dover Resources, Inc. v. Mega Sys., LLC, 350 F.3d 1327, 1344 (Fed.Cir.2003). A pleading that simply av ers the substantive elements of inequitable conduct, without setting forth the particularized factual bases for the allegation, does not satisfy Rule 9(b). See King Auto., Inc. v. Speedy Muffler King, Inc., 667 F.2d 1008, 1010 (CCPA 1981) (“Rule 9(b) requires that the pleadings contain explicit rather than implied expression of the circumstances constituting fraud.”). For example, in a case where inequitable conduct was alleged on the basis that an applicant “failed to disclose all the relevant prior art known to it,” we found this allegation deficient because it did not identify the specific prior art that was allegedly known to the" }, { "docid": "17199253", "title": "", "text": "the first case filed when the defense had originally been asserted only in the second ease). D. Conclusion Claims of inequitable conduct are governed by the heightened pleading provisions of Rule 9(b), and therefore must be pled with particularity. The degree of particularity required is that which will give the opposing party sufficient notice to prepare an appropriate response. In particular, the party asserting the claim of inequitable conduct must provide the time, place, and contents of the inequitable conduct, in addition to the identities of those involved in the conduct. Each of these factors must be pled with particularity. SPI has not given Stowe sufficient detail regarding the contents of its defense. The language “actions taken by foreign patent offices, and/or industry publications or products, including at least those of Interlink,” is too vague to provide meaningful guidance to Stowe in formulating its response. Although SPI did provide Stowe with a specific patent number in its allegation that Stowe failed to disclose material prior art to the Patent Office, SPI did not go far enough in describing the actions taken by foreign patent offices and industry publications or products. For the foregoing reasons, the plaintiffs motion to dismiss the defendant’s defense of inequitable conduct will be granted. However, the defendant is free to seek leave to amend its .answers to conform to the requirements of Rule 9(b) with respect to its defense of inequitable conduct. The Clerk is directed to send certified copies of this Memorandum Opinion and the accompanying Order to all counsel of record. . MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003); The Wicker Group v. The Standard Register Co., Inc., 33 U.S.P.Q.2d 1678, 1679, 1994 WL 761244 (E.D.Va.1994); Depuy, Inc. v. Zimmer Holdings, Inc., 343 F.Supp.2d 675, 683 (N.D.Ill.2004); Rhone-Poulenc Agro S.A. v. Monsanto Co., 73 F.Supp.2d 537, 538 (M.D.N.C.1999); Systemation, Inc. v. Engel Indus., Inc., 183 F.R.D. 49, 51 (D.Mass.1998); Chiron Corp. v. Abbott Laboratories, 156 F.R.D. 219, 220-21 (N.D.Cal.1994); So-larex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 178 (E.D.N.Y.1988). But see Quantum Corp. v. Western Digital Corp., 10 U.S.P.Q.2d 1712," }, { "docid": "7086330", "title": "", "text": "Circuit has never directly addressed the issue. However, the great weight of authority in the district courts holds that Rule 9(b) does in fact apply to claims of inequitable conduct. See, e.g., Samsung Electronics Co. Ltd. v. Texas Instruments Inc., 39 U.S.P.Q.2d 1673, 1675 (N.D.Tex.1996); EMC Corp. v. Storage Technology Corp., 921 F.Supp. 1261, 1262-63 (D.Del.1996); Simpson v. Stand 21 S.A., 32 U.S.P.Q.2d 1848, 1850, 1994 WL 735936 (S.D.Ind.1994); Chiron Corp. v. Abbott Laboratories, 156 F.R.D. 219, 220-21 (N.D.Cal. 1994); Energy Absorption Systems Inc. v. Roadway Safety Service Inc., 28 U.S.P.Q.2d 1079, 1080, 1993 WL 248008 (N.D.Ill.1993); IPPV Enterprises v. Cable/Home Communications, 25 U.S.P.Q.2d 1894 (S.D.Cal.1992); Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 178 (E.D.N.Y.1988). These courts have reasoned that Rule 9(b) should apply since inequitable conduct is a form of fraud. See, e.g., Samsung Electronics, 39 U.S.P.Q.2d at 1675 (citing Kingsdown Medical Consultants v. Hollister, Inc., 863 F.2d 867 (Fed.Cir.1988)). Indeed, in Kingsdown, the Federal Circuit held that intent to deceive is a required element of a claim of inequitable conduct. Kingsdown, 863 F.2d at 872. Further, many courts have cited the Federal Circuit’s concern over the potential abuse of the inequitable conduct claim, and have concluded that stricter pleading requirements might act as a check on such abuses. See, e.g., Samsung Electronics, 39 U.S.P.Q.2d at 1675 (“Application of Rule 9(b) may serve as an effective tool in preventing ... abuse [of inequitable conduct claims].”) (citing Burlington Indus. Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed.Cir.1988); FMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed.Cir.1987)). Engel cites only one case, Quantum Corp. v. Western Digital Corp., 10 U.S.P.Q.2d 1712, 1713 (N.D.Cal.1988), as direct support for its contention that Rule 9(b) does not apply to claims of inequitable conduct. But another judge of the U.S. District Court for the Northern District of California has since expressly rejected the holding of Quantum Corp. See Xilinx Inc. v. Altera Corp., 33 U.S.P.Q.2d 1149, 1151, 1994 WL 782236 (N.D.Cal.1994). The Court is aware of no other case in which a court has squarely held Rule 9(b) to be" }, { "docid": "17199236", "title": "", "text": "district courts have held that the heightened pleading requirements of Rule 9(b) do apply to claims of inequitable conduct. _ Although the Federal Circuit has not specifically addressed whether Rule 9(b) applies to the inequitable conduct defense, in upholding the decision of a district court in the Fifth Circuit, the Federal Circuit noted in dicta that while inequitable conduct is a broader concept than fraud, it must nevertheless be “pled with particularity.” Ferguson Beauregard/Logic Controls, Div. of Dover Resources, Inc., v. Mega Systs., LLC, 350 F.3d 1327, 1344 (Fed.Cir.2003). The Court upheld the district court’s decision to decline to address the alleged inequitable conduct defense on the grounds that it was not properly pled. Id. The heightened pleading requirements of Rule 9(b) are meant to “deter the filing of charges of fraud as a pretext for discovery of unknown wrongs.” Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163,178 (E.D.N.Y.1988). This deterrent purpose is commensurate with the Federal Circuit’s demonstrated antipathy towards the defense of inequitable conduct, which was enunciated in rather telling terms in Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418 (Fed.Cir. 1988). Mindful of this purpose and the precedent established by our sister courts, this court concludes that the heightened pleading requirements of Rule 9(b) apply to defenses of inequitable conduct. Thus, SPI should have pled with particularity the circumstances constituting the alleged inequitable conduct, including “the time, place, and contents of the inequitable conduct, as well as the identity of the parties responsible for the inequitable conduct.” MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003) (citing Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999)). Utilization of Fourth Circuit law regarding what constitutes particularity in pleading fraud is appropriate. The Federal Circuit “review[s] procedural matters, that are not unique to patent issues, under the law of the particular regional circuit court where appeals from the district court would normally lie.” Panduit Corp. v. All States Plastic Mfg., Inc., 744 F.2d 1564, 1574-75 (Fed.Cir.1984). The requirements of particularity under Rule 9(b) are not unique to patent issues. Consequently, the court must" }, { "docid": "17199241", "title": "", "text": "2003 WL 151227, at *5 (D.Del. Jan. 21, 2003). These cases, although not controlling upon this court, demonstrate that the heightened pleading requirements of Rule 9(b) should be tempered, as SPI suggests, by the “short and plain statement” mandate of Federal Rule of Civil Procedure 8. See, e.g., Adkins v. Crown Auto, Inc., 2005 WL 1799728, at *3 (W.D.Va. July 27, 2005); Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1278 (C.A.D.C.1994). The District of Maryland has also applied the time, place, and contents requirements of heightened pleading and concluded that a defense of inequitable conduct that indicated the conduct occurred “during prosecution before the PTO,” the “Applicants” were the responsible parties, and a certain publication was the undisclosed prior art, satisfied the particularity threshold. MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003). The court further noted that “Rule 9(b) allows intent to deceive to be averred generally.” Id. In its defense, SPI alleged that “the paten-tee, inventors, and/or other individuals” were the parties responsible for the inequitable conduct, the conduct occurred “during the prosecution of the patent,” and the conduct occurred before the United States Patent and Trademark Office. These allegations give Stowe sufficient notice of the allegations such that Stowe may adequately identify the people, places, and dates that are implicated in the defense. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999) (identifying the primary purpose for Rule 9(b) as “ensuring] that the defendant has sufficient information to formulate a defense by putting it on notice of the conduct complained of’). More problematic are SPI’s allegations of the contents of the inequitable conduct. SPI identified the relevant contents as including one patent that was undisclosed material pri- or art, and “actions taken by foreign patent offices, and/or industry publications or products, including at least those of Interlink,” which Stowe also allegedly failed to disclose. Stowe contends that SPI’s identification of “actions taken by foreign patent offices” is particularly vague in that it fails to identify the actions in question, what foreign patent offices were involved, when the actions were allegedly taken," }, { "docid": "7086329", "title": "", "text": "’880 and ’944 patents, the applicant willfully or with gross negligence committed certain inequitable acts that misled the Patent and Trademark Office. In particular, the applicant, having knowledge of certain prior art willfully refrained from disclosing such prior art to the Patent and Trademark Office and, therefore, violated his duty of disclosure. # 37, Answer at 1121. Paragraph 7 of Engel’s Answer likewise claims that the patents at issue are unenforceable. # 37, Counterclaim at 117. Systemation argues now that Engel’s affirmative defense and counterclaim of inequitable conduct should bé stricken because it claims Engel has failed to comply with the requirements of Rule 9(b), Fed.R.Civ.P. III. Analysis Federal Rule of Civil Procedure 9(b) provides as follows: Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally- Fed.R.Civ.P. 9(b). The parties dispute whether Rule 9(b) applies to claims of inequitable conduct in patent cases. The Federal Circuit has never directly addressed the issue. However, the great weight of authority in the district courts holds that Rule 9(b) does in fact apply to claims of inequitable conduct. See, e.g., Samsung Electronics Co. Ltd. v. Texas Instruments Inc., 39 U.S.P.Q.2d 1673, 1675 (N.D.Tex.1996); EMC Corp. v. Storage Technology Corp., 921 F.Supp. 1261, 1262-63 (D.Del.1996); Simpson v. Stand 21 S.A., 32 U.S.P.Q.2d 1848, 1850, 1994 WL 735936 (S.D.Ind.1994); Chiron Corp. v. Abbott Laboratories, 156 F.R.D. 219, 220-21 (N.D.Cal. 1994); Energy Absorption Systems Inc. v. Roadway Safety Service Inc., 28 U.S.P.Q.2d 1079, 1080, 1993 WL 248008 (N.D.Ill.1993); IPPV Enterprises v. Cable/Home Communications, 25 U.S.P.Q.2d 1894 (S.D.Cal.1992); Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 178 (E.D.N.Y.1988). These courts have reasoned that Rule 9(b) should apply since inequitable conduct is a form of fraud. See, e.g., Samsung Electronics, 39 U.S.P.Q.2d at 1675 (citing Kingsdown Medical Consultants v. Hollister, Inc., 863 F.2d 867 (Fed.Cir.1988)). Indeed, in Kingsdown, the Federal Circuit held that intent to deceive is a required element of a claim of inequitable conduct. Kingsdown," }, { "docid": "17199248", "title": "", "text": "to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile. Nolte v. Capital One Financial Corp., 390 F.3d 311 (4th Cir.2004); Johnson v. Oroweat Foods Co., 785 F.2d 503, 509-10 (4th Cir.1986). It is common practice to permit a party that has failed to satisfy the particularity requirements of Rule 9(b) to amend its pleadings accordingly. See Rhone-Poulenc Agro S.A. v. Monsanto Co., 73 F.Supp.2d 537, 539-40 (M.D.N.C.1999); MercExchange, L.L.C. v. eBay, Inc., 271 F.Supp.2d 784 (E.D.Va.2002). The Middle District of North Carolina found an allegation of inequitable conduct deficient under the enhanced pleading requirements of Rule 9(b), but granted the defendant, who had not acted in bad faith or with an intent to cause delay, leave to amend its answer and counterclaim. Point DX Inc. v. Voxar Ltd., 2002 WL 31189696, at *3 (M.D.N.C. Sept.20, 2002). Therefore, SPI may petition the court for leave to amend. One final issue to be addressed is whether any such amendment will apply to both patents or just the ’314 patent, as originally pled. SPI contends that the defense should apply to both the ’314 patent and the ’285 patent. Stowe notes that counsel for SPI have indicated that the defendant believes its allegations encompass the ’285 patent and has sought to depose Stowe’s patent attorney to discuss the prosecution of both claims. Stowe contends that SPI has failed to raise an inequitable conduct defense in its answer to the complaint concerning the ’285 patent and therefore should not be permitted to engage in discovery regarding such conduct in the prosecution of the ’285 patent. See ResQNet.Com. Inc. v. Lansa, Inc., 2004 WL 1627170 (S.D.N.Y. July 21, 2004) (holding that a party may not take discovery on an inequitable conduct defense when it is not specifically pled and that such a defense would not be inferred when the party reserves the right to raise additional, unspecified affirmative defenses). SPI responds that in its answer to the complaint regarding the ’285 patent, it did allege that the patent was “invalid, void, and" }, { "docid": "11468031", "title": "", "text": "the plaintiffs legal conclusions. See National Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C.Cir.1996); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Rule 9(b) of the Federal Rules of Civil Procedure requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Defendant argues (and plaintiff does not dispute) that Rule 9(b) requires claims of inequitable conduct, like claims of fraud, to be pled with particularity. See Memorandum in Support of Motion by Team Worldwide Corporation to Dismiss the Third Claim for Relief of the First Amended Complaint for Declaratory Relief and Patent Invalidity of Plaintiff Intex Worldwide Corporation (“Mot. Dism.”) at 5-6; Opp. Mot. Dism. at 1. Although it has never held squarely that Rule 9(b) applies to inequitable conduct claims, the Federal Circuit has suggested in dicta that this requirement is appropriate. See Ferguson Beauregard/Logic Controls v. Mega Sys., 350 F.3d 1327, 1344 (Fed.Cir.2003) (“in contrast to the willfulness claim discussed above, inequitable conduct, while a broader concept than fraud, must be pled with particularity”). Most other federal courts to have considered the issue have required inequitable conduct claims to be pled with particularity. See, e.g., Magarl v. Lawler Mfg. Co., 2004 WL 2750252, *12 (S.D.Ind.2004), 2004 U.S. Dist. LEXIS 24283, at *34 ; MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003); Agere Sys. Guardian Corp. v. Proxim, Inc., 190 F.Supp.2d 726, 733-34 (D.Del.2002); Systemation, Inc. v. Engel Indus. Inc., 183 F.R.D. 49, 51 (D.Mass.1998). This Court agrees. The particularity requirement of Rule 9(b) demands that the pleader specify what statements were made and in what context, when they were made, who made them, and the manner in which the statements were misleading. See Firestone v. Firestone, 76 F.3d 1205, 1211 (D.C.Cir.1996) (plaintiff must state the “time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud”); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1277-78 (D.C.Cir.1994) (same); In re Newbridge Networks Securities Litigation, 767 F.Supp. 275, 282 (D.D.C.1991);" }, { "docid": "17199240", "title": "", "text": "various pleadings. In EMC Corp. v. Storage Tech. Corp., the Court ruled that the plaintiff had failed to plead with particularity the allegations of inequitable conduct contained in its answer to the defendant’s counterclaim. 921 F.Supp. 1261 (D.Del. 1996). In doing so, the Court applied Third Circuit law regarding the specific pleading, provisions of Rule 9(b), which does not require the complaint to allege the date, time, or place of the inequitable conduct, “provided the complaint gives the defendants notice of the precise misconduct alleged.” Id. at 1263. The plaintiff had alleged only that the defendant failed to disclose material prior art and that the defendant made a “misrepresentation” regarding the development of the alleged invention within a certain time period. The Court found that “[a]t a minimum, EMC should have disclosed the relevant prior art.” Id. A later Delaware case held that mere disclosure of the name of the allegedly withheld prior art and the acts of the alleged fraud was sufficient to fulfill the Rule 9(b) requirements. TruePosition, Inc. v. Allen Telecom, Inc., 2003 WL 151227, at *5 (D.Del. Jan. 21, 2003). These cases, although not controlling upon this court, demonstrate that the heightened pleading requirements of Rule 9(b) should be tempered, as SPI suggests, by the “short and plain statement” mandate of Federal Rule of Civil Procedure 8. See, e.g., Adkins v. Crown Auto, Inc., 2005 WL 1799728, at *3 (W.D.Va. July 27, 2005); Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1278 (C.A.D.C.1994). The District of Maryland has also applied the time, place, and contents requirements of heightened pleading and concluded that a defense of inequitable conduct that indicated the conduct occurred “during prosecution before the PTO,” the “Applicants” were the responsible parties, and a certain publication was the undisclosed prior art, satisfied the particularity threshold. MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003). The court further noted that “Rule 9(b) allows intent to deceive to be averred generally.” Id. In its defense, SPI alleged that “the paten-tee, inventors, and/or other individuals” were the parties responsible for the inequitable conduct, the conduct occurred “during" }, { "docid": "7086333", "title": "", "text": "it has failed to identify any particular prior art it claims should have been disclosed to the Patent and Trademark Office. IV. Conclusion and Order Federal Rule of Civil Procedure 12(f) provides that “the court may order stricken from any pleading any insufficient de-fense____” Since Rule 9(b) requires a claim of inequitable conduct be pled with particularity, and since Engel has failed to meet that requirement, it is ORDERED that Plaintiffs Motion to Dismiss Defendant’s Inequitable Conduct Claim under Rules 12(b)(6) and 9(b) or in the Alternative to Strike Under Rule 12(f)(# 61) be, and the same hereby is, ALLOWED to the extent that paragraph 21 of the Affirmative Defense and paragraph 7 of the Counterclaim are STRICKEN. However, the Court will allow defendant, Engel Industries, Inc., until the close of business on Monday, November 16, 1998 to file a motion to amend its answer and counterclaim so as to plead inequitable conduct with particularity as required by Rule 9(b). It is FURTHER ORDERED that Plaintiffs Motion to Dismiss Defendant’s Inequitable Conduct Claim under Rules 12(b)(6) and 9(b) or in the Alternative to Strike Under Rule 12(f)(# 61) be, and the same hereby is, otherwise DENIED. . The Federal Circuit has held that \"... it shall review procedural matters, that are not unique to patent issues, under the law of the particular regional circuit court where appeals from the district court would ordinarily lie.” Panduit Corp. v. All States Plastic Manufacturing, Inc., 744 F.2d 1564, 1574-5 (footnote omitted) (Fed. Cir.1984). This holding applies to the issue of whether a pleading comports with the requirements of Rule 9(b), Fed.R.Civ.P. Formax, Inc. v. Hostert, 841 F.2d 388, 390-1 (Fed.Cir.1988)." }, { "docid": "2750203", "title": "", "text": "their pleadings. Aver-ments of fraud on the patent office must satisfy Rule 9(b)’s requirement that fraud be pled with particularity. See Xilinx Inc. v. Altera Corp., 33 U.S.P.Q.2d 1149, 1150, 1994 WL 782236 (N.D.Cal.1994); Sun-Flex Co. Inc. v. Softview Computer Prods. Corp., 750 F.Supp. 962, 18 U.S.P.Q.2d 1171, 1172 (N.D.Ill.1990); Micro Motion, Inc. v. Exac Corp., 112 F.R.D. 2, 3 (N.D.Cal.1985). Because Miller Pipeline has not alleged in its complaint that British Gas committed fraud on the patent office, it follows necessarily that Miller Pipeline has not pled fraud with particularity. However, in order to prevent merely delaying this issue while Miller Pipeline amends its complaint to add its fraud on the patent office allegation and because we find that we can decide the issue based on the evidence before the Court, we will address the merits of Miller Pipeline’s fraudulent patent prosecution theory at this time. The Supreme Court in Walker Process determined that antitrust liability under § 2 of the Sherman Act applies to the enforcement and maintenance of a patent obtained by fraud on the Patent and Trademark Office. Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 382 U.S. 172, 174, 86 S.Ct. 347, 349, 15 L.Ed.2d 247 (1965). In order to prove its claim that British Gas committed fraud on the patent office in the procurement of its patents, Miller Pipeline must show that British Gas obtained its patents by knowingly and willfully misrepresenting or omitting material facts to the patent office. See Walker Process, 382 U.S. at 177, 86 S.Ct. at 350. The Federal Circuit in Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059 (Fed.Cir.1998) articulated what type of evidence is required to prove fraud on the patent office under Walker Process. “Such a misrepresentation or omission must evidence a clear intent to deceive the examiner and thereby cause the PTO to grant an invalid patent.... A finding of Walker Process fraud requires higher threshold showings of both intent and materiality than does a finding of inequitable conduct.... [I]t must be based on independent and clear evidence of deceptive intent together with" }, { "docid": "638218", "title": "", "text": "are unpersuaded by Qualcomm’s argument that antitrust liability cannot turn on so vague a concept as whether licensing terms are \"reasonable,” although, in other contexts, we have summarily dismissed claims that turn on similarly ambiguous terms, see Lum, 361 F.3d at 226. The reasonábleness of royalties is an inquiry that courts routinely undertake using the 15-factor test set forth in Georgia-Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116, 1120 (S.D.N.Y.1970), and some courts have already applied this test in the FRAND context, see, e.g., ESS Tech., Inc. v. PC-Tel, Inc., No. C-99-20292 RMW, 2001 WL 1891713, at *3-6 (N.D.Cal. Nov.28, 2001); see also Rambus, No. 9302, at 114-15 (finding substantial evidence that Rambus’s royalty rates were not reasonable). Their success persuades us that, given a fully-developed factual record, the same can be done here. . An interesting question, not developed by the parties, is whether \"deception” of an SDO is sufficiently akin to fraud to bring the claim within the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Analogous claims for inequitable conduct before the United States Patent and Trademark Office must be pled with particularity. See, e.g., Cent. Admixture Pharmacy Servs., Inc. v. Advanced Cardiac Solutions, 482 F.3d 1347, 1356 (Fed.Cir.2007). We need not resolve the “interesting question” because Broadcom's allegations would satisfy even a heightened pleading standard, particularly given that Rule 9(b) permits intent to be averred generally. . Paragraph (\"¶ ”) citations refer to the relevant paragraphs of the Complaint, found in the Appendix at A69 to A128. . We note Qualcomm's admission in a recent proceeding before the International Trade Commission that it now possesses a share of the United States market for UMTS chipsets of 80 to 100 percent, although we need not decide what weight, if any, we should accord that admission. See In re Certain Baseband Processor Chips and Chipsets, Transmitter and Receiver (Radio) Chips, Power Control Chips, and Products Containing Same, Including Cellular Telephone Handsels, Inv. No. 337-TA-543, 2007 ITC LEXIS 621, at *27, *50-51 & nn. 108, 109 (I.T.C. June 19, 2007). . The acquisition has since" }, { "docid": "12427053", "title": "", "text": "mistake shall be stated with particularity. Malice, intent [and] knowledge ... may be averred generally.” Fed.R.Civ.P. 9(b) (emphasis added). The First Circuit interprets “Rule 9(b) to require ‘specification of the time, place, and content' of an alleged false representation.’ ” Johnson v. Brown & Williamson Tobacco Corporation, 122 F.Supp.2d 194, 207 (D.Mass.2000); see also Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. at 51 (recognizing that First Circuit strictly applies Rule 9(b)). The CMCC defendants must therefore “state the time, place and content of the alleged inequitable conduct.” Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. at 51. Paragraph 113 of the counterclaim identifies the content of the inequitable conduct claim. It is based on Abbott’s false representation to the PTO that Davidson was the sole inventor of the inventions claimed in the ’146 and ’484 patents; Abbott’s failure to disclose that Folkman, O’Reilly and Cao were the true inventors of these inventions; and Abbott’s failure to disclose its inventorship dispute with Children’s Hospital. (Docket Entry # 175, ¶ 113). The counterclaim fully details the communications between Cao and Davidson as well as Cao’s disclosures in August, September and October of 1995 of experimental results and research protocols for testing the anti-angiogenic effect of plasminogen fragments such as Kringle 5. (Docket Entry # 175, ¶¶ 37 & 40-41). Using the information and ideas of Cao, including the idea of investigating the anti-angiogenic effect of plasminogen fragments, Abbott filed the patent application which led to the ’146 patent in May 1996. (Docket Entry # 175, ¶¶ 59-60). Such allegations more than sufficiently outline the misrepresentation and omissions at issue. Plaintiffs’ reliance on Poly-America, Inc. v. GSE Lining Technology, Inc., 1998 WL 355477 at * 5 (N.D.Tex. June 29, 1998), is misplaced. The allegation of inequitable conduct regarding the inventorship dispute in Poly-America was far more general than the allegations in the case at bar. The court in Poly-America considered deficient the plaintiffs failure to identify the previous inventors, to provide a time period and to specify the country in Europe wherein the inspection at issue took place. In contrast, the CMCC" }, { "docid": "17199235", "title": "", "text": "including at least those of Interlink, and, upon information and belief, by doing so with intent to deceive.” SPI identified Robert Moore, James Cannon, William Kennedy, and William Butterfield as individuals who may have been responsible for inequitable conduct before the Patent Office. On the basis of these responses, Stowe requests that the court dismiss SPI’s inequitable conduct defense in regard to both the ’285 patent and the ’314 patent, pursuant to Federal Rule of Civil Procedure 12(b)(6), claiming that SPI’s answer failed to plead the inequitable conduct defense with adequate particularity. Discussion A. The Standard of Pleading for Inequitable Conduct The preliminary issue for consideration is whether the defense of inequitable conduct must be pled with a higher degree of particularity than other defenses. Federal Rule of Civil Procedure 9(b) applies to all allegations of fraud and requires that such allegations be stated with particularity. Some minor disagreement exists among district courts as to whether inequitable conduct must be pled with the heightened pleading requirements applicable to allegations of fraud. However, the majority of district courts have held that the heightened pleading requirements of Rule 9(b) do apply to claims of inequitable conduct. _ Although the Federal Circuit has not specifically addressed whether Rule 9(b) applies to the inequitable conduct defense, in upholding the decision of a district court in the Fifth Circuit, the Federal Circuit noted in dicta that while inequitable conduct is a broader concept than fraud, it must nevertheless be “pled with particularity.” Ferguson Beauregard/Logic Controls, Div. of Dover Resources, Inc., v. Mega Systs., LLC, 350 F.3d 1327, 1344 (Fed.Cir.2003). The Court upheld the district court’s decision to decline to address the alleged inequitable conduct defense on the grounds that it was not properly pled. Id. The heightened pleading requirements of Rule 9(b) are meant to “deter the filing of charges of fraud as a pretext for discovery of unknown wrongs.” Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163,178 (E.D.N.Y.1988). This deterrent purpose is commensurate with the Federal Circuit’s demonstrated antipathy towards the defense of inequitable conduct, which was enunciated in rather telling terms in" }, { "docid": "12427050", "title": "", "text": "element of unfairness and deception inherent to a chapter 93A claim. See Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 489 N.E.2d 185, 197 (1986) (Dataeomm’s misrepresentation that it did not retain copy of competitor’s circulation list and its commencement of , action on oath with misstated fact and its use of litigation as “marketing tool” amounted to knowing violation of section 11); see also Kattar v. Demoulas, 433 Mass. 1, 739 N.E.2d 246, 257 (2000) (“conduct occasioning foreclosure as retribution for Kattar’s refusal to testify qualifies as actionable conduct under § 11”); Commercial Union Insurance v. Seven Provinces Insurance Company, 217 F.3d 33, 43 (1st Cir.2000) (conduct of raising multiple defenses, “stringing Commercial Union along, with the intent (as its own witnesses admitted) of pressuring Commercial Union to compromise its claim” had “extortionate quality that marks a 93A violation”), cert. denied, 531 U.S. 1146, 121 S.Ct. 1084, 148 L.Ed.2d 959 (2001). 5. Inequitable Conduct Plaintiffs move to dismiss Count V (inequitable conduct) of the counterclaim under Rule 12(b)(6) or, in the alternative, to strike the count under Rule 12(f), Fed. R.Civ.P. (“Rule 12(f)”), for failure to comply with Rule 9(b), Fed.R.Civ.P. (“Rule 9(b)”). The CMCC defendants submit that the counterclaim complies with Rule 9(b). This court agrees. Although the Federal Circuit has not directly addressed the applicability of Rule 9(b) to inequitable conduct claims, the majority of courts reaching the issue require such claims to satisfy Rule 9(b)’s particularity requirement. See Systemation, Inc. v. Engel Industries, Inc., 183 F.R.D. 49, 51 (D.Mass.1998) (collecting cases holding Rule 9(b) applicable to inequitable conduct claims); Samsung Electronics Company, Limited v. Texas Instruments, Inc., 1996 WL 343330 at * 2 n. 3 (N.D.Tx.1996) (same). Two justifications militate in favor of applying Rule 9(b) to an inequitable conduct claim. First, there is the Federal Circuit’s expressed concern about the “habit of charging inequitable conduct in almost every major patent case.” Burlington Industries, Inc. v. Dayco Corporation, 849 F.2d 1418, 1422 (Fed.Cir.1988) (describing the habit as “an absolute plague”). Stricter pleading requirements “might act as a check on such abuses.” Systemation, Inc. v. Engel" }, { "docid": "11468030", "title": "", "text": "Counterclaim ¶ 13.' On February 28, 2005, TWC filed a motion to strike that affirmative defense on the same grounds it had asserted in its motion to dismiss- — legal insufficiency and failure to plead with particularity. II. DISCUSSION A. Standard of Review A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can demonstrate no set of facts that supports its claim entitling it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1117 (D.C.Cir.2000). In evaluating the motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff. See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.Cir.1997). While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiff if those inferences are not supported by facts alleged in the complaint, nor must the Court accept the plaintiffs legal conclusions. See National Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C.Cir.1996); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Rule 9(b) of the Federal Rules of Civil Procedure requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Defendant argues (and plaintiff does not dispute) that Rule 9(b) requires claims of inequitable conduct, like claims of fraud, to be pled with particularity. See Memorandum in Support of Motion by Team Worldwide Corporation to Dismiss the Third Claim for Relief of the First Amended Complaint for Declaratory Relief and Patent Invalidity of Plaintiff Intex Worldwide Corporation (“Mot. Dism.”) at 5-6; Opp. Mot. Dism. at 1. Although it has never held squarely that Rule 9(b) applies to inequitable conduct claims, the Federal Circuit has suggested in dicta that this requirement is appropriate. See Ferguson Beauregard/Logic Controls v. Mega Sys., 350 F.3d 1327, 1344 (Fed.Cir.2003) (“in contrast to the willfulness claim discussed above, inequitable conduct, while a broader concept than" }, { "docid": "11468032", "title": "", "text": "fraud, must be pled with particularity”). Most other federal courts to have considered the issue have required inequitable conduct claims to be pled with particularity. See, e.g., Magarl v. Lawler Mfg. Co., 2004 WL 2750252, *12 (S.D.Ind.2004), 2004 U.S. Dist. LEXIS 24283, at *34 ; MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003); Agere Sys. Guardian Corp. v. Proxim, Inc., 190 F.Supp.2d 726, 733-34 (D.Del.2002); Systemation, Inc. v. Engel Indus. Inc., 183 F.R.D. 49, 51 (D.Mass.1998). This Court agrees. The particularity requirement of Rule 9(b) demands that the pleader specify what statements were made and in what context, when they were made, who made them, and the manner in which the statements were misleading. See Firestone v. Firestone, 76 F.3d 1205, 1211 (D.C.Cir.1996) (plaintiff must state the “time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud”); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1277-78 (D.C.Cir.1994) (same); In re Newbridge Networks Securities Litigation, 767 F.Supp. 275, 282 (D.D.C.1991); 5 ChaRles Alan Weight & Arthur R. Millee, FedeRal PRACTICE AND PROCEDURE § 1297 (1994). “Malice, intent, knowledge,” or other conditions of mind, however, may be averred generally. Fed.R. Civ.P. 9(b) Under Rule 12(f) of the Federal Rules of Civil Procedure, the court may strike from a pleading “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court has “liberal discretion” to strike such filings as it deems appropriate. Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir.2000); Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C.2003); see 2 Moore’s Federal PeaCtioe § 12.37[1] at 12-93 to 12-94 (3d ed.2002). Although striking pleadings is generally disfavored as an extreme remedy, a motion to strike a defense as insufficient “should be granted where it is clear that the affirmative defense is irrelevant and frivolous and its removal from the case would avoid wasting unnecessary time and money litigating the invalid defense.” Ass’n of Am. Med. Colleges v. Princeton Review, Inc., 332 F.Supp.2d 11, 22 (D.D.C.2004) (quoting SEC v. Gulf & W. Indus.," }, { "docid": "17199239", "title": "", "text": "requirements. The heightened pleading standard requires that a party allege the time, place, and contents that underlie the inequitable conduct. SPI contends that it has specified the identity of the parties responsible as “the patentee, inventors, and/or other individuals responsible for and/or associated with the prosecution of the patent application.” The defendant further asserts that it has properly-identified the “what” that was not disclosed to the Patent Office: (1) U.S. Patent No. 5,583,303; (2) actions taken by foreign patent offices; and/or (3) industry publications or products, including those of Interlink. SPI also notes that its answer did allege the time and place of the failure to disclose as “during the prosecution of the patent asserted and related patents.” Thus, the defendant concludes that it has met the particularity requirements of Rule 9(b). Although SPI has pled several facets of the claim with sufficient particularity, it has not completely fulfilled the requirements of heightened pleading. A number of cases have addressed the issue of whether inequitable conduct has been pled with sufficient particularity with respect to various pleadings. In EMC Corp. v. Storage Tech. Corp., the Court ruled that the plaintiff had failed to plead with particularity the allegations of inequitable conduct contained in its answer to the defendant’s counterclaim. 921 F.Supp. 1261 (D.Del. 1996). In doing so, the Court applied Third Circuit law regarding the specific pleading, provisions of Rule 9(b), which does not require the complaint to allege the date, time, or place of the inequitable conduct, “provided the complaint gives the defendants notice of the precise misconduct alleged.” Id. at 1263. The plaintiff had alleged only that the defendant failed to disclose material prior art and that the defendant made a “misrepresentation” regarding the development of the alleged invention within a certain time period. The Court found that “[a]t a minimum, EMC should have disclosed the relevant prior art.” Id. A later Delaware case held that mere disclosure of the name of the allegedly withheld prior art and the acts of the alleged fraud was sufficient to fulfill the Rule 9(b) requirements. TruePosition, Inc. v. Allen Telecom, Inc.," }, { "docid": "17199254", "title": "", "text": "enough in describing the actions taken by foreign patent offices and industry publications or products. For the foregoing reasons, the plaintiffs motion to dismiss the defendant’s defense of inequitable conduct will be granted. However, the defendant is free to seek leave to amend its .answers to conform to the requirements of Rule 9(b) with respect to its defense of inequitable conduct. The Clerk is directed to send certified copies of this Memorandum Opinion and the accompanying Order to all counsel of record. . MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003); The Wicker Group v. The Standard Register Co., Inc., 33 U.S.P.Q.2d 1678, 1679, 1994 WL 761244 (E.D.Va.1994); Depuy, Inc. v. Zimmer Holdings, Inc., 343 F.Supp.2d 675, 683 (N.D.Ill.2004); Rhone-Poulenc Agro S.A. v. Monsanto Co., 73 F.Supp.2d 537, 538 (M.D.N.C.1999); Systemation, Inc. v. Engel Indus., Inc., 183 F.R.D. 49, 51 (D.Mass.1998); Chiron Corp. v. Abbott Laboratories, 156 F.R.D. 219, 220-21 (N.D.Cal.1994); So-larex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 178 (E.D.N.Y.1988). But see Quantum Corp. v. Western Digital Corp., 10 U.S.P.Q.2d 1712, 1713, 1988 WL 391517 (N.D.Cal.1988) (holding that inequitable conduct before the Patent Office \"does not give rise to the level of common law fraud which is the subject of Rule 9(b)”); XI-LINX, Inc. v. Altera Corp., 33 U.S.P.Q.2d 1149, 1151, 1993 WL 767688 (N.D.Cal.1993) (questioning why the Quantum court ruled contrary to significant precedent on the inequitable conduct issue); Rentrop v. The Spectranetics Corp., 2004 WL 1243608, at *2 (S.D.N.Y. June 4, 2004) (holding that the Rule 9(b) requirements may not apply in all cases of inequitable conduct, e.g., in those involving theft of trade secrets rather than fraud on the Patent Office). . \"[T]he habit of charging inequitable conduct in almost every major patent case has become an absolute plague.... A patent litigant should be made to feel, therefore, that an unsupported charge of 'inequitable conduct in the Patent Office' is a negative contribution to the rightful administration of justice.” Id. at 1422." }, { "docid": "17199237", "title": "", "text": "Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418 (Fed.Cir. 1988). Mindful of this purpose and the precedent established by our sister courts, this court concludes that the heightened pleading requirements of Rule 9(b) apply to defenses of inequitable conduct. Thus, SPI should have pled with particularity the circumstances constituting the alleged inequitable conduct, including “the time, place, and contents of the inequitable conduct, as well as the identity of the parties responsible for the inequitable conduct.” MedImmune, Inc. v. Centocor, Inc., 271 F.Supp.2d 762, 772 (D.Md.2003) (citing Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999)). Utilization of Fourth Circuit law regarding what constitutes particularity in pleading fraud is appropriate. The Federal Circuit “review[s] procedural matters, that are not unique to patent issues, under the law of the particular regional circuit court where appeals from the district court would normally lie.” Panduit Corp. v. All States Plastic Mfg., Inc., 744 F.2d 1564, 1574-75 (Fed.Cir.1984). The requirements of particularity under Rule 9(b) are not unique to patent issues. Consequently, the court must now consider whether SPI’s pleadings complied with these prerequisites. B. Application of the Standard to SPI’s Defense As outlined above, in its October 28th answer, SPI first asserted its defense that the ’314 patent was unenforceable due to inequitable conduct in the prosecution of the patent. In this inequitable conduct defense, SPI alleged unenforceability on the grounds that Stowe failed to disclose certain known material prior art. SPI listed three pieces of undisclosed prior art: “US Patent No. 5,583,-303, actions taken by foreign patent offices, and/or industry publications or products, including at least those of Interlink.” The parties dispute whether SPI’s allegations were sufficient to comply with the heightened pleading requirements of Rule 9(b). The parties further disagree as to whether the defense of inequitable conduct may be applied to the ’285 patent, even though it was not pled in SPI’s answer to that suit. The court finds that the pleadings do not meet the requirements under Rule 9(b), but that leave to amend should be granted to allow SPI to comply with the pleading" } ]

[ { "docid": "1267099", "title": "", "text": "Opinion of the Court Paul W. BROSMAN, Judge: Appellant was convicted by a general court-martial sitting in Korea of sleeping on post, in violation of the Uniform Code of Military Justice, Article 113, 50 USC § 707. He- was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for 10 years. The convening authority approved the findings and sentence, but suspended the execution of the punitive discharge. A board of review in the office of The Judge Advocate General, United States Army, affirmed. Among other matters specified in our grant of review, in response to petition by appellant, was the question of whether the consultation of the law officer with the court in the absence of the accused was to his substantial prejudice. This issue—in view of United States v. Keith (No 503), 1 USCMA 493, 4 CMR 85, decided July 30, 1952—is dispositive of the case. The record here discloses that after the findings had been announced, and the court had closed to deliberate on the sentence, the law officer and reporter were called in. Neither accused, nor his counsel, nor trial counsel, was summoned. Thereupon the following conversation between the president and the law officer ensued: “PRES: In regards to forfeitures of pay the point was raised as to maximum forfeiture that can be made if he was sentence [sic] to less than 10 years confinement? “LO: On page 214 of the Manual for Courts-Martial, it-states that a court cannot take forfeitures of an amount greater than 2/3 of his pay per month for a period of six months unless a punitive discharge is also adjudged. Of course regardless of the forfeitures imposed by the court if the sentence includes a discharge the man will not receive any more pay after such a sentence was approved and ordered executed. Does this answer the problem raised by the court? “PRES: Yes I believe that was the information requested.” We have made it clear in Keith that this constituted a flat violation of the Uniform Code of Military Justice, Articles 26(b) and 39, 50 USC §§ 590, 614," } ]

[ { "docid": "16021197", "title": "", "text": "accused was guilty of a violation of Article 86, supra, and since any harm with respect to the sentence could have been cured by its action, the board of review was not legally bound to set aside the conviction in its entirety and dismiss the charge. United States v. Gilgallon, 1 USCMA 263, 2 CMR 170, decided March 21, 1952; United States v. Goddard, 1 USCMA 475, 4 CMR 67, decided July 24, 1952. As we said in Gilgallon: “error without injury does not require reversal”; much less does error without injury require dismissal of a proper charge which was clearly and convincingly supported by the evidence. The decision of the board of review in this case was, therefore, based upon an erroneous interpretation of the law. This should be corrected. However, we express no opinion as to what constitutes an appropriate sentence. United States v. Gilgallon, supra. Accordingly, the certified question is answered in the negative. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army for such action as may be consistent with this opinion. Judge BROSMAN concurs. Judge LatimeR concurs in the result." }, { "docid": "1601337", "title": "", "text": "the act shows a wanton disregard for human life.” In United States v. Joe L. Davis, 2 USCMA 505, 10 CMR 3, decided May 14, 1953, and. United States v. Holsey, 2 USCMA 554, 10 CMR 52, decided May 28, 1953, we held that that arm of the crime of murder does not apply when the act is directed solely against one person. The facts in this case bring the crime within the limitations expressed in those cases. It, therefore, follows that the law officer incorrectly informed the members of the court-martial when he told them they could find the accused guilty if they found he acted in a way inherently dangerous to others without an intent to kill or to do great bodily harm to any particular person. His acts may have been inherently dangerous to, and may have shown a wanton disregard for, the life of the victim, but that theory of murder has been rejected by us. If it fails for the substantive offense, it fails as a supporting element for an assault. For the foregoing reasons, we reaffirm the doctrine that assault with intent to murder should ordinarily mean assault with intent to kill and that instructions should be given which are consistent with that rule. The decision of the board of review is reversed and the cause remanded to The Judge Advocate General of the Army for reference to a board of review for consideration of either a finding on a lesser included offense or a rehearing. BROSMAN, Judge (concurring in the result) : I concur in the result. Quinn, Chief Judge (dissenting): I dissent. We have consistently held that instructions relative to a specific intent must be limited to the particular intent charged, and that the failure to tailor the instructions to fit the intent charged constitutes error. United States v. Russell L. Williams, 1 USCMA 186, 2 CMR 92, decided February 21, 1952; United States v. Hemp, 1 USCMA 280, 8 CMR 14, decided April 8, 1952; United States v. Jenkins, 1 USCMA 329, 3 CMR 63, decided April 21, 1952. This error" }, { "docid": "18671999", "title": "", "text": "Opinion of the Court Robert E. Quinn, Chief Judge: Petitioner Henry M. Smith' was convicted of rape upon common trial by general court-martial in Korea with a Private First Class Norbert Pawlik.' Smith was charged with premeditated murder and rape; Pawlik was charged with unpremeditated murder and rape. Pawlik was found not guilty on both charges, and Smith was convicted of the rape only and sentenced to dishonorable discharge, total forfeiture of pay and confinement at hard labor for life. Army reviewing authorities have upheld the findings and sentence. We granted the petition by accused Smith, limited to the issue of whether prejudicial error was committed (1) by holding a common trial, and (2) by a conference between the law officer and the court outside .the presence of counsel. The record reflects that, after the court closed to deliberate on its findings, the law officer and the reporter were called into closed session. Neither trial nor defense counsel was present at this conference. The conversation conducted during this session is reported verbatim in the record, and it appears that the court was disputing an earlier ruling of the law officer in upholding a defense objection to the admissibility of a statement claimed by the Government to be a dying declaration. In United States v. Keith (No. 503), 1 USCMA 493, 4 CMR 85, decided July 30, 1952, and United States v. McConnell (No. 596), 1 USCMA 508, 4 CMR 100, decided July 31, 1952, we made clear our basic position in regard to these private conversations between the law officer and the court without the presence of counsel. A conference of the type held here is clearly condemned by the law and the policy demanding enforcement of that law is so important as to warrant reversal regardless of the possible effect or non-effect of the law officer’s remarks upon the deliberations of the court. Those cases require reversal here. Since a rehearing must be ordered, it becomes unnecessary to consider the defense contention in relation to the prejudicial effect of the common trial. The other accused having been found not" }, { "docid": "14623528", "title": "", "text": "violative of a fundamental principle of the Code and it did not result in any prejudice to the accused. It is only where the law officer goes beyond such formal advice and in any way participates in the deliberations of the court, or where the record does not reflect what transpired during the conference, that there is ground for reversal based on Keith, supra. This rationale requires that the decision of the boards of review be reversed in each of these cases. Since the boards found reversible error and therefore did not reach the question of appropriateness of the sentence, we are constrained to remand each of the cases to The Judge Advocate General of the Army for referral to a board of review so that the review contemplated by Article 66 of the Code, 50 USC § 653, may be completed. Judge BROSMAN concurs. CM 355407. CM 355267. CM 355457. LatimeR, Judge (concurring in the result) : I concur in the result. I concur in the result for the reasons set forth in my dissent in United States v. Woods and Duffer (No. 1023), 8 CMR 3, decided February 19, 1953. Here there was a violation of an express mandate of Congress as the law officer is not permitted to meet with the court on the sentence. There is, however, no prejudice." }, { "docid": "22945984", "title": "", "text": "because of their unreliability. The error was thus preserved for appropriate relief at the trial. See United States v Phillips, 3 USCMA 557, 13 CMR 113. Consequently, we hold that the law officer erred in failing to grant appropriate relief as to this part of the defense motion. The findings of guilty as to specifications 4, 5, and 6 of Charge IV and the sentence are set aside. The record of trial is returned to The Judge Advocate .General of the Navy for remand to a competent convening authority. In his discretion, the convening authority may direct an Article 32 investigation of said specifications and if justified by the evidence therein order a rehearing as to the said specifications and the sen tence, or dismiss the specifications and order a rehearing on the sentence alone, or reassess the sentence on the basis of the remaining specifications, without, however, including a bad-conduct discharge. Chief Judge Quinn concurs. In the exception the location of the witness was listed as “unknown.” The record of the proceedings does not contain the statements but the parties have stipulated that none of them were taken under oath or affirmation and that only ten are presently on file in the Office of Naval Intelligence, Washington, D. C. This does not mean that the accused cannot question the witness at all. There is still open to him the deposition proceedings provided by Article 49. In this way he may examine the witness on direct or cross-examination. LatimeR, Judge (concurring in part and dissenting in part): I I concur in part and dissent in part. I agree with the treatment accorded the first issue in the majority opinion, but with respect to the second and third issues I must voice disagreement. II While accepting the principle announced in United States v Marshall, 2 USCMA 342, 8 CMR 142, that a court-martial lacks authority to suspend a punitive discharge, my associates do not give credence to other concepts therein announced. By way of illustration, I invite attention to the following matters. We held in that case that the sentence imposed" }, { "docid": "1264100", "title": "", "text": "imposed that sentence had it recognized the presence of other infirmities. In the case at bar, the findings of guilty of absence without leave amply support the sentence to six years confinement with accessories adjudged by the court-martial. The general proposition stated above, together with others, was considered by us at length in United States v. Keith (No. 226), 1 USCMA 442, 4 CMR 34, decided July 3, 1952, and reference is made to that opinion for a full expression of our views in these premises. It is obvious that in the instant case, no agency with authority to do so has determined whether the sentence adjudged on the basis of both sets of findings of guilty is appropriate, as well as legal, for the single valid finding of guilty of absence without leave. As we noted in United States v. Keith, supra, we possess no power to determine this question. We are, therefore, required by Keith to reject this Government contention. vm For the reasons stated, the decision of the board of review is reversed as to the specification of the second charge. However, its decision as to the specification of Charge I is affirmed. In view of our holding on the second assignment of error, it is unnecessary that we consider the first. The case is remanded to The Judge Advocate General, United States Army, for reference to the board of review for determination of adequacy of sentence, or for other action not inconsistent with this opinion. See Uniform Code of Military Justice, Articles 67(e) and (f), supra; United States v. Keith, supra. Chief Judge Quinn concurs. LatimeR, Judge (dissenting in part and concurring in part) : I dissent from that part of the Court’s opinion which holds there was material prejudice because the law officer failed to give more adequate instructions. I concur in the remaining portions. The Court’s opinion does not fully develop the manner in which the elements of the offense of voluntary manslaughter were ealled to the attention of the court-martial. However, this is of little importance in view of the rule announced in" }, { "docid": "18677111", "title": "", "text": "of which the accused was convicted, here no slightest mention of negligent homicide, or of any other lesser included offense, was made by the law officer. True it is that the term “simple negligence” was used by the present charge. However, no effort was made to define the phrase, or to furnish the court-martial with any sort of guidance criterion. It is argued here, however, in line with the dissent in Clark, that since the accused, Moreash, was actually found guilty of the lesser included homicide, as to which no instruction was given, he could not possibly have been harmed by the law officer’s omission. Our answer to this is that, had the court been fully and properly instructed, its members might well have returned findings of not guilty — that is, they might have deemed the homicide in question to have been a purely accidental killing. It is interesting to observe in this connection that the files of the Judge Advocate General’s Office, United States Army, reflect that on rehearing under complete instructions, following reversal by this Court, the accused in United States v. Clark, supra, was found not guilty. V It follows from what has been said that the question certified by The Judge Advocate General, United States Army, must be answered in the affirmative. Consequently, the record of trial is returned to him with notation that the decision of the board of review is affirmed. Judge LatimeR concurs. CM 350776. Quinn, Chief Judge (dissenting); I dissent. Here, as in United States v. Clark (No. 190), 1 USCMA 201, 2 CMR 107, decided February 29, 1952, I quite fail to find any prejudice resulting from the failure of the law officer to instruct the court specifically and fully on the elements of the crime of negligent homicide. The findings demonstrate that the court knew that negligent homicide was a proper lesser included offense within involuntary manslaughter. As I stated in the Clark decision, the name of this offense supplies its own definition. Further, the evidence points quite clearly, in my opinion, to gross and culpable negligence. I have" }, { "docid": "14623527", "title": "", "text": "reach the level of the evil we condemned in Keith. We are here concerned with enforcing a departure from the previous system which permitted the law member to participate in the deliberations of the court on guilt or innocence and on the sentence to be imposed. If the participation by the law- officer does not infringe upon these areas, now reserved to the court alone, then there is no departure from the basic policy we are here concerned with and thus no cause for invocation of the doctrine of general prejudice. See United States v. Berry (No. 69), 2 CMR 141, decided March 18, 1952. The law officers here said nothing that could possibly be construed as participating with the court in their deliberations on the sentence. It would be as illogical to apply the doctrine of general prejudice here as it would be to apply the doctrine of military due process to the situation involved in United States v. Lucas (No. 7), 1 CMR 19, decided November 8, 1951. The error committed is not violative of a fundamental principle of the Code and it did not result in any prejudice to the accused. It is only where the law officer goes beyond such formal advice and in any way participates in the deliberations of the court, or where the record does not reflect what transpired during the conference, that there is ground for reversal based on Keith, supra. This rationale requires that the decision of the boards of review be reversed in each of these cases. Since the boards found reversible error and therefore did not reach the question of appropriateness of the sentence, we are constrained to remand each of the cases to The Judge Advocate General of the Army for referral to a board of review so that the review contemplated by Article 66 of the Code, 50 USC § 653, may be completed. Judge BROSMAN concurs. CM 355407. CM 355267. CM 355457. LatimeR, Judge (concurring in the result) : I concur in the result. I concur in the result for the reasons set forth in my" }, { "docid": "16021196", "title": "", "text": "connection with the imposition of sentence may require reversal of a con- viction. United States v. Keith, 1 USCMA 493, 4 CMR 85, decided July 30, 1952; United States v. Bound, 1 USCMA 224, 2 CMR 130, decided March 13, 1952. But, by excluding the inadmissible evidence from its determination of an appropriate sentence for an unauthorized absence, the board of review could have effectively removed any taint of error. See United States v. Zimmerman, 2 USCMA 12, 6 CMR 12, decided October 6, 1952. A board of review is under a duty to affirm so much of the findings of guilty as is not affected by error committed at the trial. So, too, is it under' a duty to affirm so much of the sentence as it deems appropriate on the basis of the entire record. Article 66, Uniform Code of Military Justice, supra; United States v. Shepard, 1 USCMA 487, 492, 4 CMR 79, 84, decided July 25, 1952. Since the assumed error could .have had no influence upon the finding that the accused was guilty of a violation of Article 86, supra, and since any harm with respect to the sentence could have been cured by its action, the board of review was not legally bound to set aside the conviction in its entirety and dismiss the charge. United States v. Gilgallon, 1 USCMA 263, 2 CMR 170, decided March 21, 1952; United States v. Goddard, 1 USCMA 475, 4 CMR 67, decided July 24, 1952. As we said in Gilgallon: “error without injury does not require reversal”; much less does error without injury require dismissal of a proper charge which was clearly and convincingly supported by the evidence. The decision of the board of review in this case was, therefore, based upon an erroneous interpretation of the law. This should be corrected. However, we express no opinion as to what constitutes an appropriate sentence. United States v. Gilgallon, supra. Accordingly, the certified question is answered in the negative. The decision of the board of review is reversed, and the record of trial is returned to The" }, { "docid": "18893773", "title": "", "text": "Opinion of the Court PER CURIAM: The accused was convicted by general court-martial of wrongful possession of narcotics in violation of Article 134 of the Uniform Code of Military Justice, 50 USC § 728, and possession of a device used to administer drugs in violation of Article 92- of the Code, 50 USC § 686. He was sentenced to a dishonorable discharge, total forfeiture of pay, and confinement for two years. The convening authority approved, suspending the discharge until release from confinement. The Army board of review held that the findings of guilty of wrongful possession of narcotics were correct in law and fact and appropriate to support the sentence. The board, therefore, deemed it unnecessary to discuss the errors raised in relation to the conviction under Article 92, citing Whitfield v. Ohio (1936) 297 US 431, 80 L ed 778, 56 S Ct 532; and Claassen v. United States (1891) 142 US 140, 35 L ed 966, 2 S Ct 173. The accused has petitioned for review, raising several errors. After the law officer had instructed the court on the elements of,the oifenses charged and after the court had closed to deliberate on its findings, the law officer and the reporter were called into the presence of the court and, according to the record, “the court stated that it wished further instruction as to the elements of proof under Article 92.” The record then states that “the law officer so advised the court.” The actual advice does not appear in the record. The consultation took place in the absence of the accused and his counsel. This was prejudicial error. United States v. Keith (No. 503), 1 USCMA 493, 4 CMR 85, decided July 30, 1952; United States v. McConnell, (No. 596), 1 USCMA 508, 4 CMR 100, decided July 31, 1952; United States v. Smith (No. 512), 1 USCMA 531, 4 CMR 123, decided August 6, 1952. The decision of the board of review is reversed and a rehearing is ordered. Judge LatimeR did not participate in the decision in this case." }, { "docid": "1601338", "title": "", "text": "assault. For the foregoing reasons, we reaffirm the doctrine that assault with intent to murder should ordinarily mean assault with intent to kill and that instructions should be given which are consistent with that rule. The decision of the board of review is reversed and the cause remanded to The Judge Advocate General of the Army for reference to a board of review for consideration of either a finding on a lesser included offense or a rehearing. BROSMAN, Judge (concurring in the result) : I concur in the result. Quinn, Chief Judge (dissenting): I dissent. We have consistently held that instructions relative to a specific intent must be limited to the particular intent charged, and that the failure to tailor the instructions to fit the intent charged constitutes error. United States v. Russell L. Williams, 1 USCMA 186, 2 CMR 92, decided February 21, 1952; United States v. Hemp, 1 USCMA 280, 8 CMR 14, decided April 8, 1952; United States v. Jenkins, 1 USCMA 329, 3 CMR 63, decided April 21, 1952. This error does not require reversal, however, unless it can fairly be said that reasonable men would be misled by the instructions. The norm by which we shall test for prejudice is “whether the facts, as brought out at the trial, point so clearly to only one type of intent that it is not possible to believe that the court could have premised its findings of guilt on any type other than that charged.” United States v. Jack G. Johnson, 1 USCMA 536, 4 CMR 128, decided August 7, 1952. See also United States v. Jenkins, supra; United States v. Moynihan, 1 USCMA 333, 3 CMR 67, decided April 21, 1952; United States v. Boone, 1 USCMA 381, 3 CMR 115, decided May 9, 1952; United States v. Cooke, 1 USCMA 421, 4 CMR 13, decided June 3, 1952; United States v. Justice, 1 USCMA 643, 5 CMR 71, decided August 28, 1952. In United States v. Jenkins, supra, a unanimous court placed its stamp of approval upon the following basis for this view: “While we desire" }, { "docid": "14513277", "title": "", "text": "due process would permit this assignment of error to be sustained merely because appellate counsel could suggest different tactics than those used by trial counsel. While we have reduced the charge of assault with intent to.inflict bodily injury to a lesser included offense of assault with a dangerous weapon, we do not deem it necessary to return the record to the Board of Review to reconsider the sentence. Viewed in the light of the entire record, the reduction of the assault charge is trifling, and we are certain a board of review would not commute the death sentence on such a minor variation. In keeping with our holding in United States v. Hunter, supra, and United States v. James E. Long (No. 529), 6 CMR 45, decided October 17, 1952, we affirm the holding of the Board of Review. Chief Judge Quinn concurs. BROSMAN, Judge (concurring in part and dissenting in part): I concur in the holding that the instructions of the law officer with respect to the charge of assault with a deadly weapon with intent to do bodily harm were defective, and require af-firmance of the lesser offense of assault with a' deadly weapon. This is entirely consistent with previous decisions of this Court in the area of instructions, and is likewise conformable to our disposition of such cases as United States v. Hunter (No. 359), 6 CMR 349, decided October 17, 1952, and United States v. Baguex (No. 699), 8 CMR 106, decided March 13, 1953. However, much is said in the majority opinion of which I cannot approve, and which I hesitate to let pass without comment. I shall advert specifically to those matters only with which I am most out of agreement. I am sure that the precise basis for my dissent will be apparent, as will its necessary bearing on my brothers’ disposition of the case. I cannot at all agree that the terms “malice aforethought” and “premeditation” are self-defining and easily understood in their full legal sense by persons not trained in- the law. They are indeed terms of art to which has" }, { "docid": "23642800", "title": "", "text": "choose to label a common sense approach to the problem but in the recent cases general prejudice is the line of attack used to set aside the findings and sentence. The first case to be reversed for error in a conference between the law officer and the court was United States v. Wilmer Keith, supra. There, the law officer, after the findings of guilty had been announced, in open court, was called into a closed session with the court-martial while it was deliberating upon the sentence. The discussion concerned the difference between a bad-conduct discharge and a dishonorable discharge. The board of review noted the infraction of the provisions of the Code and Manual, but held, one member dissenting, that it was not prejudicial to the substantial rights of the accused, since the findings of guilty had been announced and since it was evident from the type of information requested by the court-martial that it had already determined to impose one of the types of discharge, and in view of the fact that it had imposed a bad-conduct rather than a dishonorable discharge, the result of the discussion was apparently favorable to the accused. The Court reversed not only the sentence but the findings of guilt which were not touched by the discussion. United States v. McConnell, supra, also involved a post-finding conference and the discussion concerned only the appropriate forfeiture of pay. The question of whether this conference constituted prejudicial error either as to findings or sentence was not raised at the trial level, before the board of review nor by civilian counsel for the accused on appeal so it must not have been such a flagrant violation as to shock members of the bar. There again we not only set aside the sentence, we reversed the findings. In United States v. Wingert, (No. 785) 4 CMR 166, decided August 8, 1952, the accused had been tried in common trial with McConnell and the same situation was involved. This Court, by per curiam opinion, again reversed, basing its decision upon the principle enunciated in the Keith and McConnell cases." }, { "docid": "23642799", "title": "", "text": "in relation to other crime constituted misconduct, an over-all view of the case indicates that it did not result in substantial prejudice to petitioner. . . .” In United States v. Nash (No. 447) 4 CMR 130, decided August 7, 1952, the trial judge advocate under the previous provisions of Naval Courts and Boards stepped out of character, misinformed the Court and argued erroneous rules of law. We specifically searched the record and found prejudice. Based on this we reversed. In eases involving inadequate, misleading instructions, errors on admission of evidence and other substantial errors encountered in the trial of criminal cases, we have considered the prejudicial impact the error had on the findings or sentence. The foregoing cases all deal with substantial rights of an accused and yet we isolate them from the doctrine of general prejudice. This poses the question of when should a case be tested for specific prejudice and when should the visionary rule of general prejudice be the compelling motive for reversal. I know not why we abandon what I choose to label a common sense approach to the problem but in the recent cases general prejudice is the line of attack used to set aside the findings and sentence. The first case to be reversed for error in a conference between the law officer and the court was United States v. Wilmer Keith, supra. There, the law officer, after the findings of guilty had been announced, in open court, was called into a closed session with the court-martial while it was deliberating upon the sentence. The discussion concerned the difference between a bad-conduct discharge and a dishonorable discharge. The board of review noted the infraction of the provisions of the Code and Manual, but held, one member dissenting, that it was not prejudicial to the substantial rights of the accused, since the findings of guilty had been announced and since it was evident from the type of information requested by the court-martial that it had already determined to impose one of the types of discharge, and in view of the fact that it had" }, { "docid": "18622379", "title": "", "text": "Opinion of the Court Paul W. BROSMAN, Judge: Appellant stands convicted of desertion, in violation of Article of War 58, 10 USC § 1530. He pleaded guilty to the lesser included offense of absence .without leave, in violation of Article of War 61,10 USC § 1533. The findings of guilty and the- sentence to dishonorable discharge, total forfeitures, and confinement at hard labor for 10 years, have been approved by the convening authority, and affirmed by a board of review in the office of The Judge Advocate General, United States Army, The specification under which appellant was tried alleged that he did “desert the service of the United States, and did remain absent in desertion until he surrendered himself . . . .” In his instructions to the court, the law officer included three possible types of intent which might be found to support the charge, namely: intent to remain away permanently, intent to avoid hazardous duty, and intent to shirk important service. The charge to the court-martial was clear error, United States v. Williams (No. 133), 1 USCMA 186, 2 CMR 92 decided February 21, 1952; United States v. Hemp (No. 290), 1 USCMA 280, 3 CMR 14, decided April 8, 1952; United States v. Jenkins (No. 238), 1 USCMA 329, 3 CMR 63, decided April 21, 1952; United States v. Moynihan (No. 278), 1 USCMA 333, 3 CMR 67, decided April 21, 1952; United States v. Boone (No. 320), 1 USCMA 381, 3 CMR 115, decided May 9, 1952. We granted appellant’s petition for review limited to the question of whether he was prejudiced by that error. The problem then is to determine whether this case falls within the ambit of Williams and Hemp, in which we held such error to be prejudicial, or whether it more nearly resembles Jenkins, Moynihan, and Boone, where we were unable to find prejudice. The touchstone for resolution of the question, as developed by us in these earlier cases, is whether the facts, as brought out at the trial, point so clearly to only one type of intent that it is not" }, { "docid": "14623520", "title": "", "text": "Opinion of the Court ROBERT E. Quinn, Chief Judge: Each of these three cases is here on certificate from The Judge Advocate General of the Army. In Docket No. 1535, the accused were convicted of violations of Article 121 of the Uniform Code of Military Justice, 50 USC § 715. and sentenced to reduction in grade and partial forfeiture of pay. In Docket No. 1536, the accused was convicted of a violation of Article 134 of the Code, 50 USC § 728, and was sentenced to a fine of five hundred dollars and confinement at hard labor until fine was paid but for not more than six months. In Docket No. 1579, the accused was convicted of violations of Articles 86 and 92 of the Code, 50 USC §§ 680 and 686, and sentenced to a bad-conduct discharge, total forfeiture of pay and confinement for one year. In each case, the Army board of review set aside the findings and sentence and ordered a rehearing. The decisions were based on a finding that prejudicial error occurred when the law officer conferred. with members of the court outside the presence of accused and his counsel. The Army Judge Advocate General has certified to us the correctness of these decisions. Since the facts in each case are essentially the same, we have consolidated them for purposes of argument and decision. We have recently established our basic views concerning conferences by the court and the law officer, during deliberations on the findings and sentence, outside the presence of accused and his counsel. United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952; United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952; United States v. Henry M. Smith (No. 512), 4 CMR 123, decided August 6, 1952; United States v. Cadena (No. 713), 4 CMR 126, decided August 6, 1952. For the purposes of this and subsequent cases, it is desirable that we review briefly the facts and holdings in those eases. In Keith, the conference occurred during the court’s deliberations on the sentence, and the" }, { "docid": "23642742", "title": "", "text": "Does that answer your question ? PRES: Yes, thank you. LO: I also invite your attention to the other forms in that appendix in the event that the particular one to which I have directed your attention does not meet your needs. (The law officer and the reporter left the courtroom at 1412 hours.)” The remarks of the law officer extend to legal advice as to sentence matters and, as such, constitute participation in the deliberations of the court. United States v. Keith (No. 226), 4 CMR 34, decided July 3, 1952; United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952; United States v. Cadena (No. 713), 4 CMR 126, decided August 6, 1952; and United States v. Henry M. Smith (No. 512), 4 CMR 123, decided August 6, 1952. The decision of the board of review is reversed and a rehearing is ordered. BROSMAN, Judge (concurring) : It is difficult to deal effectively with a position the origins of which sound almost wholly in psychology, rather than in logic, in history, in analysis or in function. However, because of the far-reaching importance of the problem involved, and in light of what I regard as the substantial and varied misconceptions and confusions reflected in the dissenting opinion, I am impelled to set down some observations concerning “harmless error” legislation and the concept of general prejudice, together with their application to the situation involved in the instant case, as well as in United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952, and related cases. The nature and tenor of the dissent require also, I believe, an appraisal of Article 59 (a) of the Uniform Code of Military Justice, 50 USC § 646- — the military system’s “harmless error” provision — in terms of first principles. This will be attempted in a subsequent portion of this memorandum. II In the ease at bar the law officer participated in the deliberations of the court-martial in closed session regarding the sentence to be imposed on the accused — in fiat violation of the clear and" }, { "docid": "23642741", "title": "", "text": "Opinion of the Court ROBERT E. Quinn, Chief Judge: The accused were convicted by general court-martial in Korea of rape and both were sentenced to dishonorable discharge, total forfeiture of pay, and confinement for fifteen years.' The findings and sentence have been upheld on review. We granted the accused’s petition for review, limited to the issue concerning- the legality of a conference between the law officer and the court. The record reflects that after the court closed to deliberate on . the sentence, the law officer was called into closed session without the presence of the accused and their counsel. The discussion occurring during the conference is as follows: “PRES: Can we ask you a question ? LO: Yes, sir. Q. When a man is to' be discharged does that carry automatic forfeiture-with it ? A. Yes, the sentence is dishonor- . able discharge, total forfeiture, and confinement at hard labor. That should be stated in the sentence and' the proper form should be form number 9, appendix 13, page 541, Manual for Courts-Martial 1951. Does that answer your question ? PRES: Yes, thank you. LO: I also invite your attention to the other forms in that appendix in the event that the particular one to which I have directed your attention does not meet your needs. (The law officer and the reporter left the courtroom at 1412 hours.)” The remarks of the law officer extend to legal advice as to sentence matters and, as such, constitute participation in the deliberations of the court. United States v. Keith (No. 226), 4 CMR 34, decided July 3, 1952; United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952; United States v. Cadena (No. 713), 4 CMR 126, decided August 6, 1952; and United States v. Henry M. Smith (No. 512), 4 CMR 123, decided August 6, 1952. The decision of the board of review is reversed and a rehearing is ordered. BROSMAN, Judge (concurring) : It is difficult to deal effectively with a position the origins of which sound almost wholly in psychology, rather than in logic, in" }, { "docid": "18677112", "title": "", "text": "reversal by this Court, the accused in United States v. Clark, supra, was found not guilty. V It follows from what has been said that the question certified by The Judge Advocate General, United States Army, must be answered in the affirmative. Consequently, the record of trial is returned to him with notation that the decision of the board of review is affirmed. Judge LatimeR concurs. CM 350776. Quinn, Chief Judge (dissenting); I dissent. Here, as in United States v. Clark (No. 190), 1 USCMA 201, 2 CMR 107, decided February 29, 1952, I quite fail to find any prejudice resulting from the failure of the law officer to instruct the court specifically and fully on the elements of the crime of negligent homicide. The findings demonstrate that the court knew that negligent homicide was a proper lesser included offense within involuntary manslaughter. As I stated in the Clark decision, the name of this offense supplies its own definition. Further, the evidence points quite clearly, in my opinion, to gross and culpable negligence. I have no doubt that on this record, the accused could have been convicted of involuntary manslaughter. The accused was, therefore, benefited by the findings on the lesser offense and is in no position to claim prejudice here. It matters not at all that, on rehearing, the accused in Clark was found not guilty. We have no way of knowing what evidence was produced at the second trial, nor even what factors motivated the court in reaching its decision. I feel obligated to invite attention to the fact that this Court is here to do substantial justice. This accused was convicted upon adequate legal evidence. I see little justification for ordering a rehearing merely because the law officer committed an error which was in no way prejudicial to the substantial rights of the accused. The accused was found guilty of a lesser crime than was warranted by the evidence. I would reverse the decision of the board of review and affirm the findings." }, { "docid": "23642795", "title": "", "text": "mention that the error consisted of violating a provision of the Code. In this particular instance the law officer offended. He likewise did that in United States v. Lucas, (No. 7) 1 CMR 19, decided November 8, 1951, and allied cases, in that there he failed to instruct the Court on the essential elements of the offense, after a plea of guilty, and further failed to require a secret ballot on findings as required by the Code. We affirmed those findings of guilty because of no prejudice. In United States v. May (No. 241) 2 CMR 80, decided February 13, 1952, and United States v. Marcy (No. 260) 2 CMR 82, decided February 13, 1952, we held that the trial of the accused on charges which have not been sworn to was contrary to the Manual but the violation was not prejudicial. In United States v. Hutchison (No. 425) 3 CMR 25, decided April 9, 1952, we were faced with the issue of a Code violation on failure to appoint a qualified assistant defense counsel. Again, we called attention to the error but searched the record and found no prejudice. In United States v. Bartholomew (No. 166) 3 CMR 41, decided April 16, 1952, we found a violation of the spirit of the Code in not appointing defense counsel with qualifications equal to those of trial counsel. In that decision we held there was no prejudice. In United States v. Benjamin Jones (No. 79) 3 CMR 36, decided April 14, 1952, the court-martial usurped the powers of the law officer but we reaffirmed the finding of guilt. Chief Judge Quinn held there was no prejudice and the writer held that assuming there was error and prejudice, the latter was cured by the action of the convening authority and the board of review. In United States v. Bound (No. 201) 2 CMR 130, decided March 13, 1952, an officer who sat as a member of the court was expressly disqualified by the Code and yet was permitted to participate in the findings of guilty and the imposition of the sentence. Conceding" } ]

[ { "docid": "23303586", "title": "", "text": "established case law in this circuit. See United States v. Condelee, 915 F.2d 1206 (8th Cir.1990); United States v. Millan, 912 F.2d 1014 (8th Cir.1990); United States v. Drinkard, 900 F.2d 140 (8th Cir.1990). Because Agent Hicks did not have the requisite reasonable suspicion to make this Terry stop constitutional, this encounter violated McKines’ fourth amendment rights. Furthermore, since there are no significant attenuating factors separating the fourth amendment violation and McKines’ subsequent consent to search his luggage, the consent is invalid and the evidence from this search must be suppressed as fruit of the poisonous tree. As the majority correctly states, a consensual police encounter is transformed into a limited Terry-type investigative detention when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, (emphasis added). The Mendenhall Court then refined the analysis by adopting a contextual approach, stating that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554, 100 S.Ct. at 1877. The Court provided a nonexhaustive list of considerations for this analysis, including: “the threatening presence of several officers, the display of a weapon by an officer ... or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion), the Court applied this contextual approach to another airport seizure case, concluding that a fourth amendment seizure had occurred. The majority claims that the inconsistency of the holdings in Mendenhall and Royer illustrates the imprecision inherent in the Supreme Court’s contextual approach. I disagree. I do not think that the two cases are inconsistent, nor the test inherently imprecise. In Men-denhall, the police returned the defendant’s identification and ticket after asking about the different names that appeared on them. The" } ]

[ { "docid": "19272414", "title": "", "text": "There is nothing in the evidence to suggest that O’Neal’s conduct prior to the seizure was anything but unremarkable. Police officers are, of course, always free to approach citizens and question them if they are willing to stay and listen. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Without at least reasonable suspicion, though, officers may not even temporarily seize a person or his luggage. Place, 462 U.S. at 708-09, 103 S.Ct. at 2645-46; White, 890 F.2d at 1416. For the reasonable suspi-ción standard to have meaning, officers must be required to have more than a “hunch” that a suspect is carrying drugs. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Weaver, 966 F.2d at 394. The facts of this case do not even justify a hunch. As we have previously noted, “conduct typical of a broad category of innocent people provides a weak basis for suspicion.” United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). If the facts here were deemed sufficient to establish reasonable, ar-ticulable suspicion, then every traveller would potentially be subject to having luggage seized at the mere discretion of the police. See Reid, 448 U.S. at 441, 100 S.Ct. at 2754. We consequently hold that there was no reasonable suspicion and that the seizure of the defendant’s bag was illegal. B. The above finding does not end our inquiry. Based on our determination that the seizure of the bag was illegal and our rejection of the good-faith exception to the exclusionary rule in this instance, O’Neal urges that the denial of his suppression motion must be reversed. To the extent of the facts considered, we would agree. Had the magistrate relied on the canine sniff test alone to decide that probable cause existed to issue a warrant to search the bag, we would conclude that because the seizure of the bag for the test was illegal, the" }, { "docid": "3131755", "title": "", "text": "case gave him reasonable, articulable suspicion that Weaver was carrying drugs. Without recounting all of the facts set forth earlier in this opinion, we note that Weaver’s rapid mode of walking towards the taxi stand was characteristic of deplaning drug couriers. Weaver lacked a copy of his plane ticket. His lack of identification, uncommon in the case of most adults, was known to Hicks to be common for drug couriers. Weaver’s nervousness, as manifested by his unsteady, rapid speech, his tremulo'us hands, and his swaying body, struck the officers as exceeding that, exhibited by non-drug-carrying passengers.. It is true that some or all of the facts relied upon by Agent Hicks could, and might when viewed by those having no experience in surveiling and apprehending drug couriers, be viewed as innocent, non-suspicion-raising details. Indeed, when juxtaposed against each other, the facts in similar cases can be made to appear wildly inconsistent and contradictory. See, e.g., the compilation of cases in United States v. Hooper, 935 F.2d 484, 499-500 (2nd Cir.) (Pratt, J., dissenting), cert. denied, - U.S. -, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991). Nevertheless, we must review these cases one at a time and on their particular facts. Having done so here, we conclude that Agent Hicks possessed a reasonable, artic-ulable suspicion that Weaver was carrying drugs, and we therefore affirm the order denying the motion to suppress. The judgment of conviction is affirmed. . The Honorable Scott 0. Wright, United States District Judge for the Western District of Missouri. . Regarding the matter of race, Hicks testified that several different factors caused him to suspect that Weaver might be carrying drugs: “Number one, we have intelligence information and also past arrest history on two black — all black street gangs from Los Angeles called the Crips and the Bloods. They are notorious for transporting cocaine into the Kansas City area from Los Angeles for sale. Most of them are young, roughly dressed male blacks.\" We agree with the dissent that large groups of our citizens should not be regarded by law enforcement officers as presumptively criminal based" }, { "docid": "15979532", "title": "", "text": "(plurality)). The initial contact between Car-rill and Green was consensual. Carrill approached Green in a public place, identified himself as a police officer, and asked to speak with Green. Green agreed, and Carrill asked Green several questions. A request for information does not turn consensual questioning into an investigatory stop. United States v. Poitier, 818 F.2d 679, 682-83 (8th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988). Thus, initially, Green’s Fourth Amendment rights were not implicated. The encounter became an investigatory stop when Carrill, after Green denied him permission to search her bag, informed Green that he would detain her bag so that a dog could sniff search the bag. In order for police officers to briefly detain luggage for a sniff search without violating the Fourth Amendment, they must have either the own- er’s consent or a reasonable suspicion supported by articulable objective facts that the luggage contains drugs. United States v. Jones, 990 F.2d 405, 407 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 350, 126 L.Ed.2d 314 (1993). Here, Green did not consent to the search until after Carrill detained the bag. Thus, Carrill was justified in seizing Green’s' bag only if he had a reasonable articulable suspicion that it contained illegal narcotics. In evaluating the validity of investigatory stops, we must consider the “totality of the circumstances — the whole picture.” United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Reasonable suspicion must derive from more than an “inchoate and unpartieu-larized suspicion or ‘hunch.’ ” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). Moreover, “[cjonduct typical of a broad category of innocent people provides a weak basis for suspicion.” United States v. Weaver, 966 F.2d 391, 394 (8th Cir.) (quoting United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989)), cert. denied, — U.S. -, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992). We have ruled upon numerous airport, train" }, { "docid": "15979533", "title": "", "text": "314 (1993). Here, Green did not consent to the search until after Carrill detained the bag. Thus, Carrill was justified in seizing Green’s' bag only if he had a reasonable articulable suspicion that it contained illegal narcotics. In evaluating the validity of investigatory stops, we must consider the “totality of the circumstances — the whole picture.” United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Reasonable suspicion must derive from more than an “inchoate and unpartieu-larized suspicion or ‘hunch.’ ” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). Moreover, “[cjonduct typical of a broad category of innocent people provides a weak basis for suspicion.” United States v. Weaver, 966 F.2d 391, 394 (8th Cir.) (quoting United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989)), cert. denied, — U.S. -, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992). We have ruled upon numerous airport, train station, and bus terminal cases considering whether there was a reasonable articu-lable suspicion to justify an investigatory stop or seizure. See United States v. O’Neal, 17 F.3d 239, 241 (8th Cir.) (cataloging a number of these cases), cert. denied, — U.S. -, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). The case before us is an extremely close one. We believe that it falls somewhere between the facts outlined in a number of our reported cases: O’Neal, 17 F.3d at 241; United States v. Weaver, 966 F.2d 391 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992); United States v. Millan, 912 F.2d 1014 (8th Cir.1990); and United States v. White, 890 F.2d 1413 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). The magistrate judge found that, when Carrill seized Green’s bag, thereby converting a previously consensual encounter into an investigatory stop, he knew that: (1) Green arrived on an airplane from Phoenix, a known source city for drugs and a hub for an airline" }, { "docid": "19375327", "title": "", "text": "it unlawful to identify oneself falsely to a law enforcement officer (although the magistrate rejected the government’s alternative argument that the officers had probable cause to believe Mani-kowski possessed drugs); that Brown lacked standing to challenge the search of Manikowski; and that the warrant to search the baggage was lawful. The district judge adopted the magistrate’s recommendations, and allowed the evidence to be admitted at trial; both defendants were convicted of the crimes charged. II It cannot be disputed that the two officers initially had no reasonable and articulable suspicion that the defendants were involved in illegal activity. The facts that caught their attention — that the defendants came from West Palm Beach, which the officers identified as “source city” for the distribution of narcotics, had paid for their tickets in cash, and looked at the officers — are insufficient to justify an investigatory stop (a “Terry” stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) short of an arrest. See Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam). But it is established that not every “stop” is a detention requiring the modest fourth amendment protection of “reasonable suspicion” prescribed by Terry. In particular, the Supreme Court has held that police officers may “approach[] an individual on the street or in another public place, ... ask[ ] him if he is willing to answer some questions, [and] put[ ] questions to him if the person is willing to listen” without implicating the fourth amendment. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); see also Reid v. Georgia, 448 U.S. at 440 n. *, 100 S.Ct. 2752, 2753 n. *, 65 L.Ed.2d 890; Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889. It is generally agreed that such an encounter is not covered by the fourth amendment unless “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870," }, { "docid": "3131747", "title": "", "text": "462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989), cert. denied, - U.S. -, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). Reasonable suspicion must derive from more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. For a Terry stop to be valid, the police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer’s experience, create a reasonable suspicion of criminal activity. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989); United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). “[T]he relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10, 109 S.Ct. at 1587 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). Thus, a series of acts that appear innocent, when viewed separately, may warrant further investigation when viewed together. Id. “[Cjonduct typical of a broad category of innocent people provides a weak basis for suspicion.” Crawford, 891 F.2d at 681; see also Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam). Because Weaver felt free to leave when the officers first questioned him, that encounter was consensual and did not constitute a seizure. Florida v. Royer, 460 U.S. 491, 497-508, 103 S.Ct. 1319, 1323-30, 75 L.Ed.2d 229 (1983) (plurality). It was only when Hicks told Weaver that he intended to seize Weaver’s bags that a seizure for Fourth Amendment purposes occurred. United States v. Harvey, 946 F.2d 1375, 1377 (8th Cir.1991); United States v. McKines, 933 F.2d 1412, 1423 (8th Cir.) (en banc), cert. denied, - U.S.-, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). See also United States v. Galvan, 953 F.2d 1098, 1102-03 (8th Cir.1992). Our decision therefore turns on" }, { "docid": "12086780", "title": "", "text": "street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984). “In this sort of police/citizen encounter, ‘the degree of suspicion that is required is zero.’ United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988).” Edwards, 898 F.2d at 1276. In United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989), we noted that “[t]his circuit has adopted the Supreme Court’s ‘reasonable person’ test for determining whether a seizure has occurred in airport [and presumably train station] cases.... ” (Citing Black, 675 F.2d at 134.) “In Men-denhall, the Supreme Court concluded that ‘a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ Mendenhall, 446 U.S. at 554 [100 S.Ct. at 1877]....” Teslim, 869 F.2d at 321. The facts in Edwards bear a striking resemblance to our own. Edwards was stopped at Union Station in Chicago after arriving on an Amtrak train from the source city of Los Angeles. Edwards, 898 F.2d at 1277. He looked around nervously and appeared shaken when stopped by officers. Id. His ticket was paid for in cash. Id. The officers asked if they could speak with Edwards, and he consented. Id. at 1275. They asked to search his bags but told him he could refuse to consent. Id. He refused. Id. The officers told him he was not under arrest and that he could leave at any time. Id. The officers detained his luggage for a drug sniff by a narcotics dog. Id. at 1274. Edwards left before the drug sniff. Id. at 1275. The sniff was positive, and after obtaining a search warrant, the officers recovered cocaine and" }, { "docid": "3131757", "title": "", "text": "upon their race. We would not hesitate to hold that a solely race-based suspicion of drug courier status would not pass constitutional muster. Accordingly, had Hicks relied solely upon the fact of Weaver's race as a basis for his suspicions, we would have a different case before us. As it is, however, facts are not to be ignored simply because they may be unpleasant — and the unpleasant fact in this case is that Hicks had knowledge, based upon his own experience and upon the intelligence reports he had received from the Los Angeles authorities, that young male members of black Los Angeles gangs were flooding the Kansas City area with cocaine. To that extent, then, race, when coupled with the other factors Hicks relied upon, was a factor in the decision to approach and ultimately detain Weaver. We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be. ARNOLD, Chief Judge, dissenting. Because this case seems to me indistinguishable in any significant way from United States v. White, 890 F.2d 1413 (8th Cir.1989), cert. denied, - U.S.-, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990), I respectfully dissent. The White opinion is less than three years old, and none of our cases decided since that time has questioned it or thrown doubt upon it in any way. There are differences between the present facts and those in White, to be sure, as there always are, but the differences, on balance, do not place this search and seizure appreciably closer to the line of legality than what happened in White. Like Weaver, White was “very, nervous,” ante at 395, he arrived from a source city, the flight was early in the morning, and White had no checked luggage. Some of the facts in White, indeed, appear stronger than the present case: for example, White had purchased his ticket with cash, and it was a one-way ticket. The agents did not know whether Weaver had bought his ticket for cash or not, or whether it was one way. Weaver" }, { "docid": "15979539", "title": "", "text": "are left with Green’s arrival on a plane from a known source city, and her vagueness about the purpose of her trip. These facts are insufficient to demonstrate a reasonable articulable suspicion of criminal activity. In finding that a reasonable articulable suspicion did exist, the magistrate judge relied almost exclusively upon our decision in Weaver, 966 F.2d at 391. Weaver is distinguishable in two respects. First, the officer in Weaver relied on intelligence reports received from Los Angeles authorities and arrest records indicating that young black male members of Los Angeles gangs were flooding the Kansas City area with cocaine. Id. at 394 n. 2. In the present case, there are no intelligence reports or arrest records. We believe this to be the most distinguishing factor in Weaver. In the present case, Car-rill merely relied upon his experience. Although we should consider “any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals,” Campbell 843 F.2d at 1093, suspicion based solely on an officer’s experience is not as strong an indicator of criminal activity as suspicion based upon particularized intelligence reports. This is especially true when many of the officer’s observations were, as we have pointed out, descriptive of conduct “typical of a broad category of innocent people.” Weaver, 966 F.2d at 394. Second, in Weaver, Weaver initially consented to the search of his bag. 966 F.2d at 393. He then changed his mind, telling the officer he was in a rush to visit his mother in the hospital, and refused to consent without a warrant. Id. Weaver then attempted to leave with his bags. Id. At this point, the officer decided to detain the bags and apply for a search warrant. Id. While we do not endorse the view that refusing to consent to the search of one’s bag is indicative of criminal behavior, Weaver’s initial consent and the manner in which he withdrew his consent contributed to the officer’s reasonable articu-lable suspicion. Green is closer to several other decisions in this circuit. In" }, { "docid": "19272413", "title": "", "text": "472 (1993); United States v. Wilson, 953 F.2d 116 (4th Cir.1991). Often these cases are so closely decided that even within this circuit, similar fact patterns have led to different results. Compare United States v. Weaver, 966 F.2d 391 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992) with United States v. Millan, 912 F.2d 1014 (8th Cir.1990). The facts of this ease, however, are free of such difficulties. In the present case, there is a compelling lack of any evidence that might be said to engender reasonable, articulable suspicion. The mere fact that young people wear athletic jackets and carry athletic bags hardly presents a basis to believe that they are criminals. Add to this that they come from Chicago or ride a bus or smoke or even appear to be nervous, and there is still nothing collectively to suggest that criminal activity is afoot. Cf. White, 890 F.2d at 1418 (noting that “becoming nervous when one is confronted by officers of the law is not an uncommon reaction”). There is nothing in the evidence to suggest that O’Neal’s conduct prior to the seizure was anything but unremarkable. Police officers are, of course, always free to approach citizens and question them if they are willing to stay and listen. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Without at least reasonable suspicion, though, officers may not even temporarily seize a person or his luggage. Place, 462 U.S. at 708-09, 103 S.Ct. at 2645-46; White, 890 F.2d at 1416. For the reasonable suspi-ción standard to have meaning, officers must be required to have more than a “hunch” that a suspect is carrying drugs. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Weaver, 966 F.2d at 394. The facts of this case do not even justify a hunch. As we have previously noted, “conduct typical of a broad category" }, { "docid": "11347789", "title": "", "text": "that respondent “engaged in behavior ... designed to evade detection” to support a legal conclusion that reasonable suspicion always requires evidence of ongoing criminal activity. Justice Powell expressly refuted this formalistic reading of the reasonable suspicion standard. Although he did not maintain that the drug courier profile automatically demonstrated reasonable suspicion, he noted that “[e]ach case raising a Fourth Amendment issue must be judged on its own facts.” Id. at 565 n. 6, 100 S.Ct. at 1883 n. 6. The Supreme Court again considered the constitutionality of airport drug stops in Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). The Court found that the DEA agents could not have reasonably suspected Reid of criminal activity based on the few profile characteristics observed. The agents knew only that: 1) Reid had arrived from Fort Lauderdale, 2) he arrived in the early morning, 3) he and his companion tried to conceal the fact that they were traveling together, and 4) they had no luggage other than shoulder bags. Id. at 441,100 S.Ct. at 2754. Although the Court noted that three of these factors described a “very large category of innocent travelers,” the court did not wholly reject reliance on the drug courier profile when more or different factors are present. While conformity with certain aspects of the profile does not automatically create reasonable suspicion, “there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” Id.; see also United States v. Erwin, 803 F.2d 1505, 1511 (9th Cir.1986) (Reid does not preclude all reliance on profile characteristics; it simply indicates that most general characteristics cannot alone support a stop). Subsequently, in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), eight members of the Court found reasonable suspicion based on drug courier profile characteristics. The plurality held that the agents possessed sufficient suspicion for an investigative stop, but that the agents exceeded the permissible bounds of the stop when they moved Royer to a small room for questioning. Id. at 502-05, 103" }, { "docid": "3131748", "title": "", "text": "2335 n. 13, 76 L.Ed.2d 527 (1983)). Thus, a series of acts that appear innocent, when viewed separately, may warrant further investigation when viewed together. Id. “[Cjonduct typical of a broad category of innocent people provides a weak basis for suspicion.” Crawford, 891 F.2d at 681; see also Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam). Because Weaver felt free to leave when the officers first questioned him, that encounter was consensual and did not constitute a seizure. Florida v. Royer, 460 U.S. 491, 497-508, 103 S.Ct. 1319, 1323-30, 75 L.Ed.2d 229 (1983) (plurality). It was only when Hicks told Weaver that he intended to seize Weaver’s bags that a seizure for Fourth Amendment purposes occurred. United States v. Harvey, 946 F.2d 1375, 1377 (8th Cir.1991); United States v. McKines, 933 F.2d 1412, 1423 (8th Cir.) (en banc), cert. denied, - U.S.-, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). See also United States v. Galvan, 953 F.2d 1098, 1102-03 (8th Cir.1992). Our decision therefore turns on whether the officers had a reasonable, articulable suspicion that Weaver was engaged in criminal activity when they pursued him to detain his baggage after he attempted to leave. Hicks testified that he took the following factors into consideration when he decided to detain Weaver’s bags: (1) that Weaver got off a direct flight from Los Angeles, a source city for drugs; (2) that he was a roughly dressed young black male who might be a member of a Los Angeles street gang that had been bringing narcotics into the Kansas City area; (3) that he moved rapidly from the airplane toward a taxicab; (4) that he had two carry-on bags and no cheeked luggage; (5) that he had no identification on his person; (6) that he did not have a copy of his ticket; (7) that he appeared very nervous when he talked to Hicks; (8) and that he made no mention of visiting his mother until the last second before he tried to leave the consensual interview. In Reid v. Georgia, the Supreme Court" }, { "docid": "21608193", "title": "", "text": "of objective justification” to support a Terry stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). The existence of reasonable suspicion is determined by the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). The Supreme Court has recognized that there could be “circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot,” Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam), and, therefore, facts consistent with innocent travel taken together may amount to reasonable suspicion if they have probative value (i.e., sufficient to warrant consideration). Sokolow, 109 S.Ct. at 1586. The relevant inquiry is the degree of suspicion that attaches to particular types of noncriminal acts. Id. at 1587. Whether certain facts viewed as a whole establish reasonable suspicion must be determined by viewing them in light of a law enforcement officer’s experience and familiarity with the practices of narcotics couriers. United States v. Nunley, 873 F.2d 182, 185 (8th Cir.1989); United States v. Sadosky, 732 F.2d 1388, 1393 (8th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984); United States v. Wall raff, 705 F.2d 980, 988-89 (8th Cir.1983). Agent Hicks had seventeen years of experience as a DEA agent with substantial experience in drug trafficking investigations. At the time of the Terry stop, Agent Hicks had observed Condelee deplane at KCI, a use city, from an early morning flight from Los Angeles, a source city especially for early courier dispatch. Agent Hicks had received a tip that two Los An-geles street gangs were using “sharply dressed black female couriers” to smuggle drugs through KCI. Condelee, a black woman, was stylishly dressed. Condelee was traveling with only carry-on luggage, a garment bag and a purse. Condelee walked quickly and directly, looking straight ahead, across the concourse to the exit door. During the ensuing consensual encounter, Condelee was very nervous (her hands shook and her voice was accelerating), and she attempted to conceal the" }, { "docid": "23090906", "title": "", "text": "Supp. 1992), is not dispositive on the issue. See Reid v. Georgia, 448 U.S. 438, 442, 100 S.Ct. 2752, 2754-55, 65 L.Ed.2d 890 (1980) (per curiam) (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.”). Rather, the government argues that Officer LeMasters’ conduct must be judged under a reasonableness standard, and her conduct was reasonable in light of the circumstances. Because the government’s challenge is limited to the proper legal standard and the reasonableness of the officer’s conduct, our review is de novo. See United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991) (“[UJltimate determinations of reasonableness under the Fourth Amendment, and other questions of law, are reviewed de novo.”). A. “[T]he Fourth Amendment’s protection against ‘unreasonable ... seizures’ includes seizure of the person.” California v. Hodari D., — U.S. -,-, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991) (citation omitted). Of course, not all police-citizen encounters implicate the Fourth Amendment. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1980-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984). See generally United States v. Bloom, 975 F.2d 1447, 1450-56 (10th Cir.1992). “[MJere police questioning does not constitute a seizure.” Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, “ ‘law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place_’” Id. (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). Rather, a person is seized for Fourth Amendment purposes when, considering all the surrounding circumstances, the police conduct “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id. at -, 111 S.Ct. at 2389. Applying this standard to the case before us, we have little doubt that both King and Burdex were seized when Officer LeMasters ordered King at gunpoint to place his hands on the steering wheel or else be" }, { "docid": "3131756", "title": "", "text": "- U.S. -, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991). Nevertheless, we must review these cases one at a time and on their particular facts. Having done so here, we conclude that Agent Hicks possessed a reasonable, artic-ulable suspicion that Weaver was carrying drugs, and we therefore affirm the order denying the motion to suppress. The judgment of conviction is affirmed. . The Honorable Scott 0. Wright, United States District Judge for the Western District of Missouri. . Regarding the matter of race, Hicks testified that several different factors caused him to suspect that Weaver might be carrying drugs: “Number one, we have intelligence information and also past arrest history on two black — all black street gangs from Los Angeles called the Crips and the Bloods. They are notorious for transporting cocaine into the Kansas City area from Los Angeles for sale. Most of them are young, roughly dressed male blacks.\" We agree with the dissent that large groups of our citizens should not be regarded by law enforcement officers as presumptively criminal based upon their race. We would not hesitate to hold that a solely race-based suspicion of drug courier status would not pass constitutional muster. Accordingly, had Hicks relied solely upon the fact of Weaver's race as a basis for his suspicions, we would have a different case before us. As it is, however, facts are not to be ignored simply because they may be unpleasant — and the unpleasant fact in this case is that Hicks had knowledge, based upon his own experience and upon the intelligence reports he had received from the Los Angeles authorities, that young male members of black Los Angeles gangs were flooding the Kansas City area with cocaine. To that extent, then, race, when coupled with the other factors Hicks relied upon, was a factor in the decision to approach and ultimately detain Weaver. We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be. ARNOLD, Chief Judge, dissenting. Because this case seems to me indistinguishable in any" }, { "docid": "3131742", "title": "", "text": "WOLLMAN, Circuit Judge. Arthur T. Weaver appeals his conviction on a charge of possession of cocaine with intent to distribute, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The sole issue before us on appeal is whether the district court erred in denying Weaver’s motion to suppress evidence. We affirm. I. In the early morning hours of March 8, 1989, Drug Enforcement Administration (DEA) agent Carl Hicks and Platte County Detectives Paul Carrill and Tully Kessler were at the Kansas City International Airport awaiting the arrival of Braniff Flight 650, a direct flight to Kansas City from Los Angeles due in at 6:45 a.m. As Weaver disembarked from Flight 650 he caught Officer Hick’s attention because he was a “roughly dressed” young black male who was carrying two bags and walking rapidly, almost running, down the concourse toward a door leading to a taxi stand. Because Hicks was aware that a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area and that walking quickly towards a taxicab was a common characteristic of narcotics couriers at the airport, he became suspicious that Weaver was a drug trafficker. Hicks and his fellow officers began running down the concourse after Weaver. Weaver stopped, turned around, saw the three men approaching him, and hesitated. Hicks displayed his badge and asked Weaver if he would answer some questions. In response to Hicks’ question, Weaver said that he had been in Los Angeles trying to find his sister who had been missing for several years. Hicks requested to see Weaver’s airline ticket, but after searching-his pockets Weaver said that he must have left it on the plane. When Hicks asked Weaver if he had any identification, Weaver replied that he did not, but gave Hicks his name and Kansas City address. Hicks testified that while it is extremely uncommon for adults not to have identification, it is common for persons carrying narcotics not to have any. Hicks also testified that Weaver appeared to be very nervous: his voice was unsteady, his speech was" }, { "docid": "17360488", "title": "", "text": "as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). Specifically, Campbell maintains that he was stopped solely because he conformed with certain aspects of the drug courier profile and, relying on Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), Campbell argues that a suspect’s match to the drug courier profile does not provide an officer with the reasonable suspicion necessary to justify a fourth amendment seizure. In denying the motion to suppress, the district court determined that the initial encounter was consensual, requiring no objective justification, and that Campbell answered the questions put to him voluntarily. The court then determined that the encounter matured into an investigative, Terry-type seizure which did not violate the fourth amendment because it was based on a reasonable and articulable suspicion of criminal activity and was properly limited in scope and duration. The court further found that Campbell consented to the search of his bag and coat and that once Agent Scott found the packet of white powder, probable cause existed to arrest Campbell. After waiving his right to trial by jury, Campbell was convicted and sentenced to six years’ imprisonment plus a three year mandatory parole term. I. Not every encounter between law enforcement officers and an individual constitutes a seizure within the meaning of the fourth amendment. INS v. Delgado, 466 U.S. 210, 215-17, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984). It is well-settled that “law enforcement officers do not violate the fourth amendment by merely approaching an individual on the street or in another public place by asking him if he is willing to answer some questions [and] by putting questions to him.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (plurality); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (opinion of Stewart J.). No objective justification is required for such an encounter because no constitutional interest is implicated. Mendenhall, 446 U.S. at 554-55, 100" }, { "docid": "3131746", "title": "", "text": "currency. Hicks obtained a warrant and searched both of Weaver’s bags. One of the bags contained more than six pounds of crack cocaine. Weaver moved to suppress all physical evidence obtained from his person and baggage. Following a hearing, the district court denied the motion. Weaver entered a conditional guilty plea, reserving the right to appeal the denial of the suppression motion. The district court sentenced Weaver to 151 months’ imprisonment, supervised release of five years, a fine of ten thousand dollars, and a special assessment. This appeal followed. II. Weaver contends that the law enforcement officers did not have a reasonable, articulable suspicion of criminal activity and thus violated his Fourth Amendment right to be free from unreasonable searches and seizures. Police may, without a warrant, briefly stop and ask questions of a person whom they reasonably suspect of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-23, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). Detention of a person’s luggage in an airport must satisfy the same Terry standards. United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989), cert. denied, - U.S. -, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). Reasonable suspicion must derive from more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. For a Terry stop to be valid, the police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer’s experience, create a reasonable suspicion of criminal activity. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989); United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). “[T]he relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10, 109 S.Ct. at 1587 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317," }, { "docid": "3131749", "title": "", "text": "whether the officers had a reasonable, articulable suspicion that Weaver was engaged in criminal activity when they pursued him to detain his baggage after he attempted to leave. Hicks testified that he took the following factors into consideration when he decided to detain Weaver’s bags: (1) that Weaver got off a direct flight from Los Angeles, a source city for drugs; (2) that he was a roughly dressed young black male who might be a member of a Los Angeles street gang that had been bringing narcotics into the Kansas City area; (3) that he moved rapidly from the airplane toward a taxicab; (4) that he had two carry-on bags and no cheeked luggage; (5) that he had no identification on his person; (6) that he did not have a copy of his ticket; (7) that he appeared very nervous when he talked to Hicks; (8) and that he made no mention of visiting his mother until the last second before he tried to leave the consensual interview. In Reid v. Georgia, the Supreme Court concluded that a drug agent could not, as a matter of law, have reasonably suspected the defendant of criminal activity by relying on the following factors: • (1) the defendant’s arrival from a source city for cocaine; (2) the defendant’s arrival early in the morning when “law enforcement activity is diminished;” (3) the defendant and his companion had no luggage other than shoulder bags; and (4) the apparent attempt of the defendant and his companion to conceal the fact that they were traveling together. 448 U.S. at 441, 100 S.Ct. at 2754. In United States v. Sokolow, the Court held that agents had a reasonable basis on which to suspect that the defendant was transporting illegal drugs where: (1) the defendant had paid more than $2,000 for two airline tickets in cash; (2) he traveled under a name which did not match the name listed for his telephone number; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours; (5) he appeared nervous; and" }, { "docid": "19272412", "title": "", "text": "search warrant for it.” The officer took the bag inside the depot, and a canine sniff test indicated that the bag contained narcotics. Based upon the collective weighing of the above facts, we hold that the evidence fails to demonstrate objectively reasonable, articula-ble suspicion justifying the seizure of the bag. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). This circuit, like others, has engaged in many exhaustive discussions as to what conduct is sufficient to create reasonable, articulable suspicion justifying a seizure of baggage. See, e.g., United States v. McKines, 933 F.2d 1412 (8th Cir.) (en banc), cert. denied, — U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991); United States v. White, 890 F.2d 1413 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990); United States v. Walker, 7 F.3d 26 (2d Cir.1993); United States v. McCarthur, 6 F.3d 1270 (7th Cir.1993); United States v. Frost, 999 F.2d 737 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 573, 126 L.Ed.2d 472 (1993); United States v. Wilson, 953 F.2d 116 (4th Cir.1991). Often these cases are so closely decided that even within this circuit, similar fact patterns have led to different results. Compare United States v. Weaver, 966 F.2d 391 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992) with United States v. Millan, 912 F.2d 1014 (8th Cir.1990). The facts of this ease, however, are free of such difficulties. In the present case, there is a compelling lack of any evidence that might be said to engender reasonable, articulable suspicion. The mere fact that young people wear athletic jackets and carry athletic bags hardly presents a basis to believe that they are criminals. Add to this that they come from Chicago or ride a bus or smoke or even appear to be nervous, and there is still nothing collectively to suggest that criminal activity is afoot. Cf. White, 890 F.2d at 1418 (noting that “becoming nervous when one is confronted by officers of the law is not an uncommon reaction”)." } ]

[ { "docid": "12370896", "title": "", "text": "filing date” of March 28, 1969. The District Court accepted this view of section 44(d), and since Langis admitted that it had not used the mark in the United States, granted summary judgment for SCM. 376 F.Supp. at 967-68. Appellant Langis offers a second and, in our view, more plausible interpretation of section 44(d). Langis suggests that section 44(d) grants a foreign applicant which has used the trademark in its home country after the foreign filing but prior to the actual United States filing a constructive use date as of the date of the foreign filing. Under this view, Langis would have priority since its constructive use date of March 28, 1969 preceded SCM’s actual use date of May 15, 1969. We think the structure of the Lanham Act reinforces Langis’s interpretation of section 44(d). In the first place, section 1 of the Act, 15 U.S.C. § 1051(a)(1) (Supp. IV, 1974), requires an applicant for registration to indicate the date the trademark was first used in commerce in the United States; but foreign nationals applying pursuant to section 44(d) are exempted from that requirement, id. § 1126(d)(2) (1970). Moreover, the 1946 Act deals specifically with the protection to be accorded to rights acquired by third parties, and it expressly protects only those “rights acquired by third parties before the date of the filing of the first application in the foreign country . . . .” Id. § 1126(d)(3). The Lanham Act also provides that nothing in section 44(d) “shall entitle the owner of a registration granted under . . . section [44] to sue for acts committed prior to the date on which his \"mark was registered in this country unless the registration is based on use in commerce.” Id. § 1126(d)(4) (emphasis added). The clear implication is that section 44 recognizes registration based on something other than “use in commerce,”- namely, a foreign registration. See id. § 1126(e). Finally, there is section 44(b) of the Act, which provides: Any person whose country of origin is a party to any convention or treaty relating to trademarks, trade of commercial names," } ]

[ { "docid": "12370908", "title": "", "text": "use of the mark, the fact that the Article also subjected the right of priority to the “rights of third parties” left some doubt as to whether that exception applied only to rights in a mark acquired prior to the foreign filing date or whether the exception in effect accorded protection to third party rights acquired after the foreign filing date. That ambiguity was clarified in the 1934 revision at London, which was ratified by the United States in 1938. 53 Stat. 1748, T.S. 941. . There are three possible positions that can be argued with respect to the use requirements applicable to section 44 filings by foreign nationals: (1) foreign nationals must allege use in commerce; (2) though use in commerce is not required, foreign nationals must nevertheless allege use somewhere; or (3) foreign nationals are not required to allege use at all. Section 44(d)(2) of the 1946 Act clearly exempts section 44(d) applications from the section 1 requirement that applications allege use in commerce 15 U.S.C. § 1051(a)(1) (Supp. IV, 1974); id. § 1126(d)(2) (1970). As to the other two possible positions, the official policy of the Patent Office has shifted with some regularity. See British Insulated Callender’s Cables, Ltd., 83 U.S.P.Q. 319 (Comm’r 1949) (there must be an allegation of use “somewhere”), overruled in Societe Fromageries Bel, 105 U.S.P.Q. 392 (Comm’r 1955) (the “Merry Cow\" case) (there is no use requirement), overruled in Certain Incomplete Trademark Applications, 137 U.S. P.Q. 69 (Comm’r ,1963) (there must be an allegation of use somewhere). And there has been considerable disagreement among commentators on that issue. Compare Ladas, What Does the Vienna Trademark Registration Treaty Mean to the United States?, 63 T.M.Rep. 551, 559-63 (1973) (there must be use somewhere) with Zelnick, Foreign Trademark Applicants and Registrants and the Requirement of Use: The Right to Register, 52 T.M.Rep. 641, 650-51 (1962) (there is no use requirement). The Trademark Trial and Appeal Board opinion in the instant case erroneously states that appellant Langis “had made no use of the marks ‘LEMON TREE’, ‘ORANGE TREE’, or ‘APPLE TREE’ . . . prior to" }, { "docid": "18528043", "title": "", "text": "restrictive than the older 'rendered in commerce’ phrase.” Id. . \"Void ab initio” means \"[n]ull from the beginning.” Black’s Law Dictionaiy 1064 (8th ed.2004). . The exception to this rule, which applies to foreign applicants, provides that [a] mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register in this chapter provided.... The application must state the applicant's bona fide intention to use the mark in commerce, but use in commerce shall not be required prior to registration. 15 U.S.C. § 1126(e) (2006). . The success or profitability of the service once it is offered to the public is irrelevant in the use requirement analysis. Therefore, the use requirement can be met when a service that was open for business immediately fails. This reasoning does not apply, however, to services that failed during their preparatory stages and, as a result, were never offered to the public. The use requirement is not met in such instances. . We find it unfortunate that Mr. Aycock lost his AIRFLITE service mark after the USPTO granted him a registration over thirty years ago. But under the federal trademark and service mark registration system, no period of years exists beyond which a mark holder becomes immune from invalidation under the use requirement. This harsh reality may be offset by the common-law trademark doctrine, which provides a mark user with rights even if that user did not file an application with the USPTO. . While the 1988 TLRA changed the use requirement registration procedures by permitting \"intent to use” applications, the applicant must still use the mark in commerce at some point in time after that intent to use application is filed in order to qualify for registration. See 15 U.S.C. § 1051(b), (d) (2006). Because Mr. Aycock never used his service mark at any point in time in commerce, he would not have met the use requirement in 1994, which was the year his renewal application was granted. NEWMAN, Circuit Judge, dissenting. Now, thirty-five years after federal registration of" }, { "docid": "21007409", "title": "", "text": "that Creative Harbor has done is file the Creative ITUs. The Creative ITUs—in and of themselves—do not establish Creative Harbor’s priority to the Mark. See, e.g., Fila Sport, S.p.A. v. Diadora America, Inc., 141 F.R.D. 74, 78 (N.D.Ill.1991) (noting that an ITU application, standing alone, does not establish the applicant’s priority to a mark). Rather, the Creative ITUs merely establish Creative Harbor’s constructive-use date, “[c]ontingent on [Creative Harbor’s] registration of [the] [M]ark. ” 15 U.S.C. § 1057(c) (emphasis added); see also Zobmondo Entm’t, LLC, 602 F.3d at 1111 n. 3. Thus, in order to establish its priority, Creative Harbor must actually complete the registration of the Mark by using the Mark in commerce and filing a statement of use with the USPTO within the prescribed time frame. See 15 U.S.C. § 1057(c); see also Zobmondo Entm’t, LLC, 602 F.3d at 1111 n. 3. Creative Harbor acknowledges that it has not yet used the Mark. Accordingly, while Creative Harbor may establish its priority at some point in the future, it is not now entitled to the declaration that it seeks here. C. Creative Harbor’s Additional Countercláims Fail as a Matter of Law As noted above, Creative Harbor asserts Additional Counterclaims against Kelly for unfair competition, trademark dilution, and intentional interference with prospective business. Each of the Additional Counterclaims is based on Creative Harbor’s assertion that Kelly infringed on Creative Harbor’s alleged priority rights to the Mark. (See ECF #11 at ¶¶ 30-31, 52-58, 61-71.) Creative Harbor says that it - established those rights by .filing the Creative ITUs. (See id ) But “an intent-to-use application does not, by itself, confer any rights enforceable against others.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 18 (D.C.Cir. 2008); see also Dunn Computer Corp., v. Loudcloud, Inc., 133 F.Supp.2d 823, 832 (E.D.Va.2001) (dismissing Lanham Act claim because plaintiffs intent-to-use application conferred “no statutory trademark rights to preclude others from using [the] mark” until the plaintiff registered the mark); Fila Sport, supra (dismissing trademark infringement and unfair competition claims where plaintiff had only filed an intent-to-use application and had not registered" }, { "docid": "12370893", "title": "", "text": "376 F.Supp. at 967. Since Langis used the marks in Canada but not in the United States, the court canceled the LEMON TREE registration and remanded the proceedings opposing ORANGE TREE and APPLE TREE to the Board. This appeal is taken from that final order. II Appellee SCM directs our attention to section 2(d) of the Trademark Act of 1946 (Lanham Act), 15 U.S.C. § 1052(d) (Supp. IV, 1974), which appears to preclude registration of the disputed trademarks by Langis. That section provides that “[n]o trademark . . . shall be refused registration on the principal register on account of its nature unless it — (d) Consists of or comprises a mark which so resembles . a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive . . . .” Id. (emphasis added). Langis has admitted that SCM was the first to use the marks in the United States, and nowhere suggests that SCM has abandoned them. Therefore, SCM argues, section 2(d) is “in haec verba a complete bar to Langis obtaining or maintaining registrations for its marks.” Brief at 8 (footnote omitted). This argument must, however, be evaluated in light of legislative attempts to reconcile differences between the American and foreign systems of trademark registration. In the United States, federal registration under the Lanham Act is generally based upon first use. E. g., §§ 1051(a)(1) (Supp. IV, 1974), 1127 (1970). In Canada, although an application for registration may be filed prior to use, registration itself is not forthcoming until proof is made that use has commenced. See note 2. Certain provisions of the Lanham Act were designed to provide some protection to trademarks already registered elsewhere by foreign nationals, and Langis relies for protection specifically on section 44(d), which provides in relevant part that a trademark registration application filed by a foreign national “shall be accorded the same force and effect as would be accorded to the same application if filed" }, { "docid": "12062942", "title": "", "text": "25, 1984. . 9 USPQ2d 1477. . International Order of Job's Daughters v. Lindeburg & Co., 727 F.2d 1087, 1091, 220 USPQ 1017, 1019 (Fed.Cir.1984). . International Mobile Machs. Corp. v. International Tel. & Tel. Corp., 800 F.2d 1118, 1119-20, 231 USPQ 142, 142 (Fed.Cir.1986). . Job’s Daughters, 727 F.2d at 1091, 220 USPQ at 1019-20. . 15 U.S.C. §§ 1051, 1126 (1982). . 15 U.S.C. § 1052(d) (1987). . The case at bar is decided under the provisions of the Act in force prior to the enactment of the Trademark Law Revision Act of 1988. . 15 U.S.C. § 1051 (1976) (emphasis added). . 15 U.S.C. § 1127 (1982). . U.S. Const. art. I, § 8, cl. 3; The Trademark Cases, 100 U.S. 82, 25 L.Ed. 550 (1879); 1 J. McCarthy, Trademarks and Unfair Competition § 5:3 (1973). . See, e.g., Fuji Photo Film Co. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 599, 225 USPQ 540, 546 (5th Cir.1985); Scholastic, Inc. v. Macmillan, Inc., 650 F.Supp. 866, 873 n. 6, 2 USPQ2d 1191, 1196 n. 6 (S.D.N.Y.1987); Techex, Ltd. v. Dvorkovitz, 220 USPQ 81, 83 (TTAB 1983). . Fuji Photo Film, 754 F.2d at 599, 225 USPQ at 546 (citing Ingenohl v. Olsen & Co., 273 U.S. 541, 544, 47 S.Ct. 451, 452, 71 L.Ed. 762 (1927)). . Section 44 of the Lanham Act, 15 U.S.C. § 1126 (1982), permits qualified foreign applicants who own a registered mark in their country of origin to obtain a U.S. trademark registration without alleging actual use in U.S. commerce. If a U.S. application is filed within six months of the filing of the foreign application, such U.S. registration will be accorded the same force and effect as if filed in the United States on the same date on which the application was first filed in the foreign country. The statutory scheme set forth in § 44 is in place to lower barriers to entry and assist foreign applicants in establishing business goodwill in the United States. Person’s Co. does not assert rights under § 44, which if properly applied, might have" }, { "docid": "23482394", "title": "", "text": "learn its scope.”). We further note that, in section 44(d) of the Lanham Act, Congress detailed circumstances under which the holders of foreign registered marks can claim priority rights in the United States, notably including among those circumstances actual or intended use in the United States within a specified time. See 15 U.S.C. § 1126(d) (affording United States priority rights from date of foreign registration if, inter alia, application for United States registration is filed within six months along with a statement of bona fide intent to use marks in commerce, but denying mark holder right to sue for acts committed prior to United States registration unless registration based on actual use in commerce ). Congress’s specificity in dealing with registered marks cautions against reading a famous marks exception into sections 44(b) and (h), which nowhere reference the doctrine, much less the circumstances under which it would appropriately apply despite the fact that the foreign mark was not used in this country. We are mindful that Congress has not hesitated to amend the Lanham Act to effect its intent with respect to trademark protection, having done so almost thirty times since the statute took effect in 1947. See 1 McCarthy, supra, §§ 5:5-11, at 5-13-22. In light of these legislative efforts, the absence of any statutory provision expressly incorporating the famous marks doctrine or Articles 6bis and 16(2) is all the more significant. Before we construe the Lanham Act to include such a significant departure from the principle of territoriality, we will wait for Congress to express its intent more clearly. (d) Policy Rationales Cannot, by Themselves, Support Judicial Recognition of the Famous Marks Doctrine Under Federal Law Even if the Lanham Act does not specifically incorporate Article 6bis and Article 16(2) protections for famous foreign marks, ITC urges this court to follow the Ninth Circuit’s lead and to recognize the famous marks doctrine as a matter of sound policy. See Grupo Gigante S.A De C.V. v. Dallo & Co., 391 F.3d at 1094 (recognizing famous marks doctrine because “[t]here can be no justification for using trademark law to fool" }, { "docid": "2337829", "title": "", "text": "Further, the board held that the affidavits of Imperial’s personnel that it did not intend to abandon its rights in the mark were insufficient to create a genuine issue of material fact. We agree. II This appeal requires interpretation of the statutory provision under which a registration for a mark may be cancelled on the ground that such mark has been abandoned. Specifically, the question relates to abandonment of a mark covered by a U.S. registration which was obtained on the basis of a foreign registration, where no use has been made of the mark in the United States from the date of registration up to the time the petition was filed, a period here of at least five years. The issue is one of first impression in this court. Under section 1 of the Lanham Act, as it existed prior to recent amendments, 15 U.S.C. § 1051 (1982), an applicant for registration of a trademark in the United States was not entitled to file an application until the applicant actually used the mark in U.S. commerce in connection with particular goods or services. However, an exception was provided to this general rule. Pursuant to section 44(e), a foreign applicant of a country with whom the United States maintained certain treaty rights was entitled to obtain a U.S. registration for a mark based on ownership of a registration in its home country without any use in the United States. Section 44(e) gave such foreign applicant a significant advantage over other applicants in procuring a registration in this country. However, the statute gave no similar advantage in the maintenance of a section 44(e) registration. On the contrary, section 44(f) provided, and still provides, that a registration obtained under section 44(e) “shall be independent of the registration in the country of origin and the duration, validity, or transfer in the United States of such registration shall be governed by the provisions of this chapter.” Thus, after registration, a section 44(e) registrant is entitled only to the same national treatment as any other registrant. When a petition for cancellation of a registration is" }, { "docid": "1757910", "title": "", "text": "(2d Cir.1990). Prior to 1988, an applicant for trademark registration had to have used the mark in commerce before making the application. Following the enactment of the ITU provisions in that year, a person could seek registration of a mark not already in commercial use by alleging a bona fide intent to use it. See 15 U.S.C. § 1051(b). Registration may be granted only if, absent a grant of extension, the applicant files a statement of commercial use within six months of the date on which the Commissioner’s notice of allowance pursuant to 15 U.S.C. § 1063(b) is issued. See 15 U.S.C. § 1051(d); see also Eastman Kodak Co. v. Bell & Howell Document Management Prods. Co., 994 F.2d 1569, 1570 (Fed.Cir.1993). The ITU applicant is entitled to an extension of another six months, and may receive further extensions from the Commissioner for an additional twenty four months. 15 U.S.C. § 1051(d)(2). If, but only if, the mark completes the registration process and is registered, the ITU applicant is granted a constructive use date retroactive to the ITU filing date. 15 U.S.C. § 1057(c). This retroactive dating of constructive use permits a more orderly development of the mark without the risk that priority will be lost. The issue we now address is whether the creator of a mark who files an ITU application pursuant to 15 U.S.C. § 1051(b) can be preliminarily enjoined from engaging in the commercial use required for full registration by 15 U.S.C. § 1051(d) on motion of the holder of a similar mark who commenced commercial use of its mark subsequent to the creator’s ITU application but prior to the ITU applicant’s commercial use. A brief statement of the pertinent facts follows. On September 9, 1994, TLV sent the Patent and Trademark Office (“PTO”) an ITU application for the mark “REAL WHEELS,” stating an intent-to-use the mark in commerce on or in connection with “the following goods/services: wheels affiliated with %4th and ferd scale toy vehicles.” The application was filed on September 23, 1994. Around the same time, two other companies, apparently acting in innocence and" }, { "docid": "12370895", "title": "", "text": "in the United States on the same date on which the application was first filed in [the] foreign country. . . .” Id. % 1126(d) (1970). Both SCM and Langis recognize that section 44(d) protects trademarks for which registration applications have first been filed in a foreign country. The dispute in this case goes only to the precise scope of that statutory protection. SCM contends that section 44(d) gives a foreign applicant a constructive filing date in the United States as of the date of the foreign filing; the filing date is important because the party with the later filing date bears the burden of proving that it possesses the prior right to the mark. Brief at 15, citing 376 F.Supp.' at 967, which in turn relies on Jim Dandy Co. v. Martha White Foods, Inc., 458 F.2d 1397, 59 CCPA 1016 (1972). SCM would concede that it had the burden of proof in this proceeding with respect to the right to register LEMON TREE since its actual filing date was subsequent to Langis’s “constructive filing date” of March 28, 1969. The District Court accepted this view of section 44(d), and since Langis admitted that it had not used the mark in the United States, granted summary judgment for SCM. 376 F.Supp. at 967-68. Appellant Langis offers a second and, in our view, more plausible interpretation of section 44(d). Langis suggests that section 44(d) grants a foreign applicant which has used the trademark in its home country after the foreign filing but prior to the actual United States filing a constructive use date as of the date of the foreign filing. Under this view, Langis would have priority since its constructive use date of March 28, 1969 preceded SCM’s actual use date of May 15, 1969. We think the structure of the Lanham Act reinforces Langis’s interpretation of section 44(d). In the first place, section 1 of the Act, 15 U.S.C. § 1051(a)(1) (Supp. IV, 1974), requires an applicant for registration to indicate the date the trademark was first used in commerce in the United States; but foreign nationals applying" }, { "docid": "23482393", "title": "", "text": "contemplate for famous marks, section 44(b) grants foreign mark holders covered by these treaties only those protections of United States law already specified in the Lanham Act. See Empresa Cubana del Tabaco v. Culbro Corp., 399 F.3d at 485. The Lanham Act’s unfair competition protections, as we have already explained, are cabined by the long-established principle of territoriality. See supra at 154-56. To the extent Section 44(h) references an “entitle[ment] to effective protection against unfair competition,” 15 U.S.C. § 1126(h), our precedent precludes us from construing this phrase to afford foreign mark holders any rights beyond those specified in section 44(b). See Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 134 (2d Cir.2000) (characterizing the “[rjights under section 44(h)” as “coextensive with treaty rights under section 44(b), including treaty rights relating to ... the repression of unfair competition” (internal quotation marks omitted)); see also American Auto. Ass’n v. Spiegel, 205 F.2d 771, 774 (2d Cir.1953) (“Since [section 44(h) ] is limited to ‘person[s] designated in subsection (b),’ we look to that subsection to learn its scope.”). We further note that, in section 44(d) of the Lanham Act, Congress detailed circumstances under which the holders of foreign registered marks can claim priority rights in the United States, notably including among those circumstances actual or intended use in the United States within a specified time. See 15 U.S.C. § 1126(d) (affording United States priority rights from date of foreign registration if, inter alia, application for United States registration is filed within six months along with a statement of bona fide intent to use marks in commerce, but denying mark holder right to sue for acts committed prior to United States registration unless registration based on actual use in commerce ). Congress’s specificity in dealing with registered marks cautions against reading a famous marks exception into sections 44(b) and (h), which nowhere reference the doctrine, much less the circumstances under which it would appropriately apply despite the fact that the foreign mark was not used in this country. We are mindful that Congress has not hesitated to amend the Lanham Act" }, { "docid": "2337847", "title": "", "text": "15 U.S.C. § 1051(b) (1988)), Congress added a new basis for the filing of an application, namely, a bona fide intention to use a mark in commerce in relation to specific goods or services. However, for these \"intent-to-use” applications, actual use of the mark in commerce is a prerequisite to the issuance of a registration. The same declaration of intent-to-use must now be made in connection with section 44 applications, 15 U.S.C. § 1126(e) (1988), but such registration may issue without actual use. See Pegram, J., Section 44 Revision: After the 1988 Act, 79 Trademark Reporter 220-223 (1989). . Section 44(e), 15 U.S.C. § 1126(e) (1982), provides: Registration on principal or supplemental register; copy of foreign registration A mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register in this chapter provided. The application therefor shall be accompanied by a certification or a certified copy of the registration in the country of origin of the applicant. . Section 1064(c) is, “in effect, a five year time limit barring certain attacks on a registration. It should be noted that this section is not dependent on the filing of a declaration under § 15 which provides incontestable rights of use to a limited extent (15 U.S.C. § 1065).” Wallpaper Mfrs., Ltd. v. Crown Wallcovering Corp., 680 F.2d 755, 761 n. 6, 214 USPQ 327, 332 n. 6 (CCPA 1982). . We note that the 1988 amendments added to the definition of abandonment in section 45: \" ‘Use’ of a mark means the bona fide use of that mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.” The amendment is not significant in this case. .While likelihood of confusion could not be the basis for cancellation after five years, such allegations can afford standing. The standing issue was not appealed. However, standing is a jurisdictional issue and must be considered. The board held, in essence, that Philip Morris’ standing was established by allegations that Imperial promotes and" }, { "docid": "5229767", "title": "", "text": "requested from the Department of Treasury’s Office of Foreign Assets Control (OFAC). 31 C.F.R. § 515.318. Here, Cubatabaco used a general license to attempt to register the COHIBA mark in the United States. Specifically, in January of 1997, Cubatabaco filed an application to register COHIBA for cigars and related goods. J.A. 711. Operating under the general license contained in 31 C.F.R. § 515.527(a)(1), Cubatabaco based its application on its registration of the same mark in Cuba, relying on Section 44(e) of the Lanham Act, 15 U.S.C. § 1126(e). Section 44(e) allows an applicant to rely on a foreign registration to register the same mark in the United States if the applicant has a bona fide intent to use the mark in commerce, and thus does not require actual use at the time of filing. J.A. 291. Cubatabaco also filed a petition to cancel the Registrations, which the U.S. Patent and Trademark Office cited as grounds for refusing registration to Cubatabaco because its mark created a likelihood of confusion. J.A. 307-08, 707. Cubatabaco subsequently requested a special license from OFAC to commence litigation against General Cigar for its use of the COHIBA mark. In October of 1997, OFAC agreed and granted Cubata-baco a special license to “initiate legal proceedings in the U.S. courts and to otherwise pursue their judicial remedies with respect to claims to the COHIBA trademark.” Empresa, 399 F.3d at 473-74. Shortly thereafter, on November 12, 1997, Cubatabaco sued General Cigar in the U.S. District Court for the Southern District of New York alleging trademark infringement and seeking, inter alia, to enjoin General Cigar’s use of the COHIBA mark in the United States and to cancel General Cigar’s competing Registrations. J.A. 486-502. A few weeks later, Cubatabaco requested that the Board suspend the cancellation proceedings pending the outcome of the district court action. The Board agreed and stayed the proceedings. J.A. 19, 733-34. In June 2002, the district court granted partial summary judgment. Emmpresa Cubana Del Tabaco v. Culbro Corp., 213 F.Supp.2d 247, 286-87 (S.D.N.Y.2002). The court cancelled the First Registration, finding that General Cigar had abandoned it during" }, { "docid": "5229766", "title": "", "text": "block letter format (Second Registration). Id. Cubatabaco is a Cuban entity that owns the COHIBA mark in Cuba and supplies cigars bearing that mark throughout the world. Empresa, 899 F.3d at 464. The Cuban Assets Control Regulations, 31 C.F.R. Part 15 (CACR), prohibit Cubata-baco from selling cigars in the United States. The CACR generally prohibits a wide range of transactions with Cuban entities, including the importation of products of Cuban origin. See, e.g., 31 C.F.R. §§ 515.201, 515.204. Of note, § 515.201(b) generally prohibits a “transfer of property rights ... to a Cuban entity by a person subject to the jurisdiction of the United States.” The CACR is subject to exceptions. A general or specific license allows Cuban entities to engage in certain otherwise prohibited transactions. See, e.g., 31 C.F.R. §§ 515.527(a)(1), 515.318. The CACR itself sets forth general licenses. For instance, § 515.527(a)(1) expressly authorizes Cuban entities to engage in transactions “related to the registration and renewal” of trademarks before the U.S. Patent and Trademark Office. Specific licenses, on the other hand, must be requested from the Department of Treasury’s Office of Foreign Assets Control (OFAC). 31 C.F.R. § 515.318. Here, Cubatabaco used a general license to attempt to register the COHIBA mark in the United States. Specifically, in January of 1997, Cubatabaco filed an application to register COHIBA for cigars and related goods. J.A. 711. Operating under the general license contained in 31 C.F.R. § 515.527(a)(1), Cubatabaco based its application on its registration of the same mark in Cuba, relying on Section 44(e) of the Lanham Act, 15 U.S.C. § 1126(e). Section 44(e) allows an applicant to rely on a foreign registration to register the same mark in the United States if the applicant has a bona fide intent to use the mark in commerce, and thus does not require actual use at the time of filing. J.A. 291. Cubatabaco also filed a petition to cancel the Registrations, which the U.S. Patent and Trademark Office cited as grounds for refusing registration to Cubatabaco because its mark created a likelihood of confusion. J.A. 307-08, 707. Cubatabaco subsequently requested a" }, { "docid": "4094751", "title": "", "text": "United States at the time of the application to register, citing John Lecroy & Son, Inc. v. Langis Foods Ltd., 376 F.Supp. 962 (D.D.C.1974). In that case the District Court held that a foreign applicant seeking to register a trademark in the United States could not, under either the Lanham TradeMark Act or the Paris Union Treaty, obtain a registration based on a priority use date where the trademark had never been used within the United States. The court rea soned that rights in a trademark arise from its use, and that use of a trademark outside the United States did not establish or create priority rights within the United States. However, this ease was recently reversed on appeal, sub-nom SCM Corp. v. Langis Foods Ltd., 176 U.S.App.D.C. 194, 539 F.2d 196 (1976). The Court of Appeals held that in accordance with the provisions of the International Convention for the Protection of Industrial Property (the Paris Union Treaty), when a foreign applicant applies for registration of a trademark in the United States within six months of registration of the trademark in another signatory to the Union, he is to be given the priority of his first use of the mark in the foreign country. In the present case, Plaintiff did not seek to register this mark within six months of the Canadian registration, so this provision of the Paris Union Treaty is not applicable. However, the Court of Appeals did uphold the validity of the United States trademark registration based solely upon its prior use within Canada. Thus, Defendant’s contention that the United States trademark registration is invalid must be rejected. UNFAIR COMPETITION In addition, Plaintiff asserts the right to enjoin the acts of Defendant based upon the common law principles of unfair competition. Trademark law is simply that part of the broader law of unfair competition which acknowledges that use of a name or symbol of a business rival is deceiving the public. Unfair competition was defined in Marion Laboratories, Inc. v. Michigan Pharmacal Corp., 338 F.Supp. 762, 767 (E.D.Mich.1972), aff’d 473 F.2d 910 (6th Cir. 1973) as The" }, { "docid": "18106463", "title": "", "text": "trademark rights in the United States as against one who used a similar mark in the U.S. prior to entry of the foreigner into the domestic American market.”) Nor is the rule any different when, as here, the mark is used in a foreign country in connection with services or goods sold to United States citizens. See, e.g., Person’s, 900 F.2d at 1567-69 (rejecting argument that use of trademark on goods sold in Japan by Japanese company to a U.S. citizen could establish priority rights against person using mark first in the United States); Mother’s Restaurants, 218 U.S.P.Q. at 1047-48 (rejecting argument that use of trademark on restaurant services provided in Canada by Canadian entity to Americans created “priority rights in said mark in the United States”); Stagecoach Properties, 1978 WL 21236, 199 U.S.P.Q. at 349 (rejecting argument that use of trademark on hotel and restaurant services provided in Mexico to “people from the United States” created rights protectable under U.S. law in part because this “argument ignores the fundamental rule that activity outside the United States is ineffective to create rights in marks within the United States”); see also Sterling Drug, 1968 WL 8198, 159 U.S.P.Q. at 630-31. I recognize that, consistent with the Paris Convention and other international agreements, owners of foreign trademarks can obtain United States trademark protection by registering their marks in the United States without having to show actual prior use in this country. See 15 U.S.C.A. § 1126(e) (West Supp.2002) (providing that a foreign applicant from a country with whom the United States maintains certain treaty rights can obtain a U.S. registration for a mark registered in its home country that it intends to use in U.S. commerce). But, as the majority acknowledges, SBM has not registered its mark in the United States. See ante at 361. Moreover, when the owner of a foreign trademark, like SBM, has properly registered its foreign mark under the Lanham Act, that registration merely entitles it to the “same national treatment as any other registrant.” Imperial Tobacco Ltd. v. Philip Morris, Inc., 899 F.2d 1575, 1578 (Fed.Cir.1990). Therefore," }, { "docid": "4094750", "title": "", "text": "confined to areas of actual use of the mark. Such notice also grants the owner of the registration a right superior to all subsequent users, and the right to enjoin their use. Dawn Donut Co., Inc. v. Hart Food Stores, Inc., 267 F.2d 358 (2nd Cir. 1959). Once registration is effected, no subsequent adoption and use of the same or a similar mark for the same or similar goods can be justified on a claim of good faith. Dawn Donuts, supra, at 362; Sterling Brewing v. Cold Spring Brewing Corp., 100 F.Supp. 412, 418 (D.Mass.1951); Callman, Unfair Competition, Trademarks and Monopolies (1976 ed.), § 97.3(b). By Defendant’s own admission, except for the display of the banner, Defendant’s first use of the mark did not occur until April or May, 1974, which was subsequent to the registration of Plaintiff’s trademark. Therefore, Plaintiff has a valid claim based upon the Lanham Act. However, Defendant contends that Plaintiff’s trademark registration is invalid and accords no substantive rights because no use of the mark had been made in the United States at the time of the application to register, citing John Lecroy & Son, Inc. v. Langis Foods Ltd., 376 F.Supp. 962 (D.D.C.1974). In that case the District Court held that a foreign applicant seeking to register a trademark in the United States could not, under either the Lanham TradeMark Act or the Paris Union Treaty, obtain a registration based on a priority use date where the trademark had never been used within the United States. The court rea soned that rights in a trademark arise from its use, and that use of a trademark outside the United States did not establish or create priority rights within the United States. However, this ease was recently reversed on appeal, sub-nom SCM Corp. v. Langis Foods Ltd., 176 U.S.App.D.C. 194, 539 F.2d 196 (1976). The Court of Appeals held that in accordance with the provisions of the International Convention for the Protection of Industrial Property (the Paris Union Treaty), when a foreign applicant applies for registration of a trademark in the United States within six months" }, { "docid": "12062943", "title": "", "text": "1196 n. 6 (S.D.N.Y.1987); Techex, Ltd. v. Dvorkovitz, 220 USPQ 81, 83 (TTAB 1983). . Fuji Photo Film, 754 F.2d at 599, 225 USPQ at 546 (citing Ingenohl v. Olsen & Co., 273 U.S. 541, 544, 47 S.Ct. 451, 452, 71 L.Ed. 762 (1927)). . Section 44 of the Lanham Act, 15 U.S.C. § 1126 (1982), permits qualified foreign applicants who own a registered mark in their country of origin to obtain a U.S. trademark registration without alleging actual use in U.S. commerce. If a U.S. application is filed within six months of the filing of the foreign application, such U.S. registration will be accorded the same force and effect as if filed in the United States on the same date on which the application was first filed in the foreign country. The statutory scheme set forth in § 44 is in place to lower barriers to entry and assist foreign applicants in establishing business goodwill in the United States. Person’s Co. does not assert rights under § 44, which if properly applied, might have been used to secure priority over Christman. . 5 USPQ2d 1985 (TTAB 1985). . Appellant repeatedly makes reference to a \"world economy” and considers Christman to be the remote junior user of the mark. Although Person's did adopt the mark in Japan prior to Christman's use in United States commerce, the use in Japan cannot be relied upon to acquire U.S. trademark rights. Christman is the senior user as that term is defined under U.S. trademark law. . 5 USPQ2d at 1988. . See 2 J. McCarthy, Trademarks and Unfair Competition § 26:4 (2d ed. 1984); Restatement of Torts § 732 comment a (1938). . Cf. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1565, 4 USPQ2d 1793, 1798 (Fed.Cir.1987). . Sweats Fashions, 833 F.2d at 1565, 4 USPQ2d at 1798; Selfway, Inc. v. Travelers Petroleum, Inc., 579 F.2d 75, 79, 198 USPQ 271, 275 (CCPA 1978). . See, e.g., Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332, 123 USPQ 357 (N.Y.Sup.Ct.1959); Mother's Restaurants, Inc. v. Mother's Other Kitchen, Inc., 218" }, { "docid": "12370894", "title": "", "text": "United States, and nowhere suggests that SCM has abandoned them. Therefore, SCM argues, section 2(d) is “in haec verba a complete bar to Langis obtaining or maintaining registrations for its marks.” Brief at 8 (footnote omitted). This argument must, however, be evaluated in light of legislative attempts to reconcile differences between the American and foreign systems of trademark registration. In the United States, federal registration under the Lanham Act is generally based upon first use. E. g., §§ 1051(a)(1) (Supp. IV, 1974), 1127 (1970). In Canada, although an application for registration may be filed prior to use, registration itself is not forthcoming until proof is made that use has commenced. See note 2. Certain provisions of the Lanham Act were designed to provide some protection to trademarks already registered elsewhere by foreign nationals, and Langis relies for protection specifically on section 44(d), which provides in relevant part that a trademark registration application filed by a foreign national “shall be accorded the same force and effect as would be accorded to the same application if filed in the United States on the same date on which the application was first filed in [the] foreign country. . . .” Id. % 1126(d) (1970). Both SCM and Langis recognize that section 44(d) protects trademarks for which registration applications have first been filed in a foreign country. The dispute in this case goes only to the precise scope of that statutory protection. SCM contends that section 44(d) gives a foreign applicant a constructive filing date in the United States as of the date of the foreign filing; the filing date is important because the party with the later filing date bears the burden of proving that it possesses the prior right to the mark. Brief at 15, citing 376 F.Supp.' at 967, which in turn relies on Jim Dandy Co. v. Martha White Foods, Inc., 458 F.2d 1397, 59 CCPA 1016 (1972). SCM would concede that it had the burden of proof in this proceeding with respect to the right to register LEMON TREE since its actual filing date was subsequent to Langis’s “constructive" }, { "docid": "2337846", "title": "", "text": "of the mark arising from that nonuse was, therefore, not overcome. IV For the foregoing reasons we conclude that the Trademark Trial and Appeal Board did not err in granting Philip Morris’ motion for summary judgment on its petition for cancellation of Registration No. 1,160,-229. Imperial has shown no reversible error in the standard the board applied to determine whether the mark had been abandoned within the meaning of the statute. Nor has Imperial raised a genuine issue of material fact. Accordingly, the decision of the board cancelling Registration No. 1,160,229 is affirmed. AFFIRMED. . All section references herein are to the Act of July 5, 1946, ch. 540, 60 Stat. 427, popularly known as the Lanham Act or The Trademark Act of 1946. . By the terms of the statute, a registration must be cancelled unless an affidavit or declaration of use is filed in accordance with this section during the sixth year of registration. . In the Trademark Law Revision Act of 1988, Pub.L. No. 100-667, § 103(3), 102 Stat. 3935 (codified at 15 U.S.C. § 1051(b) (1988)), Congress added a new basis for the filing of an application, namely, a bona fide intention to use a mark in commerce in relation to specific goods or services. However, for these \"intent-to-use” applications, actual use of the mark in commerce is a prerequisite to the issuance of a registration. The same declaration of intent-to-use must now be made in connection with section 44 applications, 15 U.S.C. § 1126(e) (1988), but such registration may issue without actual use. See Pegram, J., Section 44 Revision: After the 1988 Act, 79 Trademark Reporter 220-223 (1989). . Section 44(e), 15 U.S.C. § 1126(e) (1982), provides: Registration on principal or supplemental register; copy of foreign registration A mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register in this chapter provided. The application therefor shall be accompanied by a certification or a certified copy of the registration in the country of origin of the applicant. . Section 1064(c)" }, { "docid": "12370900", "title": "", "text": "rights acquired by third parties before the day of the first application on which priority is based shall be reserved by the internal legislation of each country of the Union. 53 Stat. 1748, T.S. 941 (emphasis added). This revised version clearly provides that an intervening use during the priority period cannot give rise to rights on the part of third parties. The only rights of third parties specifically protected are “[those] rights acquired by third parties before the day of the first application on which priority is based.” Thus, to the extent that the property rights in this case depend on the Paris Union Treaty, Article 4 reinforces our conclusion that a foreign applicant’s mark must be protected in this country from the date of the foreign application even as against an intervening first use by another in the United States. See Ladas, Protection of Foreign Trade-Marks Registered Under the Convention in the United States Patent Office as Against Claimants Under the Common Law, 34 Trademark Bull. (n.s. No. 11) 305, 308 (1939); Zelnick, Foreign Trademark Applicants and Registrants and The Requirement of Use: The Right to Register, 52 T.M.Rep. 641, 658-61 (1962). Ill Our holding in this case is that section 44(d) of the Trademark Act of 1946, which implements Article 4 of the Paris Union Treaty, accorded appellant Langis a “right to priority” for the six months following the filing of its Canadian application for registration, that is to say, from March 28,1969 to September 27,1969; and that an intervening use in the United States during that period cannot invalidate Langis’s right to registration in this country pursuant to an application filed on September 19,1969. We recognize that section 2(d), quoted at length at page 5 supra, prohibits registra tion of a trademark “previously used in the United States by another,” 15 U.S.C. § 1052(d) (Supp. IV, 1974), but we cannot read that section in isolation from the context of the rest of the statute. E. g., Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Our task is to endeavor to" } ]

[ { "docid": "17498381", "title": "", "text": "bargaining agreement. Of course the Union is not without responsibility toward its members with regard to the safety program. Quite apart from obligations created directly by the collective bargaining agreement itself any exclusive bargaining representative has a duty to fairly represent the members of its bargaining unit. This duty includes the obligation to enforce fairly the provisions of any collective bargaining agreement. See Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Such duty is breached when the Union in bad faith acts or fails to act for reasons which are arbitrary or discriminatory. See Humphrey v. Moore, Vaca v. Sipes, supra. While it was alleged that the United Mine Workers failed to enforce compliance with safety rules because of a conspiracy with the River Queen’s operator the evidence introduced below showed no sign whatever of such conspiracy and failed even to show that Union officials had any knowledge of any Code violation at all. Under such circumstance there can be no basis for a finding that the Union breached its duty of fair representation. In addition to their main argument directed toward the nonenforcement of the Safety Code itself appellants also assert that the Union breached its obligations under the collective bargaining agreement by failing to make periodic inspections of the mine. It is asserted that such inspection obligation was created by the terms of sub-section (e) of the Safety Program section. There can be no doubt that subsection (e) does provide for a union role in dealing with safety at the mine. It indicates that a mine safety committee shall be established at each mine with members selected from among the ranks of the union local representing a particular facility. Such committee was established and functioning at the River Queen Mine. The sub-section also provides that among other powers the committee “may inspect any mine development or equipment. . . .” It is apparently contended that this language places a duty to inspect upon the local and International Unions. We do" } ]

[ { "docid": "16592666", "title": "", "text": "formulate suggested changes in existing practices and rules, and recommend adoption of new practices and rules. Advices of the safety committee, together with supporting suggestions, recommendations and reasons shall be submitted to the Plant Manager for his Company’s responsibility to provide for the safety and health of its employees during the hours of their employment and the mutual objectives set forth in Section 1. 4. A Union member and a Management member of the safety committee may accompany the State Mine Inspector or his Deputy, on any inspection made at the property. 5. Two men shall be designated by the Union to accompany the Safety Engineer on tours of the mine. Once each month, one of these two men, together with the Safety Engineer, shall make a tour of a section of the mine. The results of this tour shall be considered at the following Union-Management safety committee meeting. 6. In the event a recommendation with respect to safety conditions that needs action immediately concurred in by a majority of the entire committee, is not carried out, the Union may have recourse to the grievance procedure.” [Emphasis added]. . See language on pages 1033-1034 in Helton, supra. . It is established that as an exclusive bargaining representative, the union has a statutory duty fairly to represent all of its employees, both in its collective bargaining with the employer, and in its enforcement of the resulting agreement. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909-910, 17 L.Ed.2d 842, 850 (1967). Here, if union members had instituted suit it would be a challenge to the enforcement or lack of enforcement of the collective bargaining agreement. In the Ninth Circuit, a union breaches its duty of fair representation when its actions or inactions are either arbitrary, discriminatory or in bad faith. Beriault v. Local 40, Super Cargoes & Check, of I.L. & W.U., 501 F.2d 258, 263-264 (9th Cir. 1974). . The Supreme Court recently in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) addressed the nature of a breach of fair" }, { "docid": "16592656", "title": "", "text": "particular bargaining agreement, the area of safety grievances may be presumptively arbitrable. Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Union participation and concern for member safety is desirable, and the right to have a meaningful voice as regards safety is derived from the give-and-take collective bargaining process. This court has addressed an analogous argument urged by the plaintiffs in this case in Provo v. Bunker Hill Company, 393 F.Supp. 778 (D.C.Idaho 1975). In Provo, plaintiff sought to obtain recovery in addition to workmen’s compensation and asserted that his employer should be liable for an assumption of an additional duty, under a dual-capacity rationale. Plaintiff argued that an employer’s furnishing of defective safety equipment was an act in a capacity other than as an employer. This court re jected plaintiff’s attempt to dissect the employer’s duties and specifically to separate the safety duty imposed upon an employer. Here, this court rejects third-party plaintiffs’ attempt to dissect a safety responsibility from other responsibilities flowing to a union member under the union’s duty of fair representation. In light of the collective bargaining agreement in this ease, a theory of common-law negligence for breach of an alleged safety duty is inextricably intertwined and embodied in the union’s duty of fair representation. The duty of fair representation is governed by federal law, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and federal law dictates that the exclusive duty owed in the context of this case is the duty of fair representation. Since the third-party plaintiffs categorically disclaim any reliance on a breach of fair representation, they have failed to state a claim for which relief can be granted. The foregoing reasoning is supported by Idaho case law. In Rawson v. United Steelworkers of America, Case No. 17694, etc., (First Judicial Dist., County of Shoshone, January 29, 1976) wherein the same theory of liability against the Steelworkers Union was urged by representatives of four deceased miners arising from the disaster involved in this case, the court, per Judge Towles," }, { "docid": "16592651", "title": "", "text": "a union meeting. Marshall v. International Longshoremen’s & W. U. Local 6, 57 Cal.2d 781, 22 Cal.Rptr. 211, 371 P.2d 987 (1962); Inglis v. Operating Engineers Local Union No. 12, 58 Cal.2d 269, 23 Cal.Rptr. 403, 373 P.2d 467 (1962). Duties arising in the above eases are dissimilar to the duty asserted in this case. The distinguishing fact is that here an action for damages (if the union members or personal representatives had instituted suit) flows from a contractual obligation undertaken by the union to benefit its members and their working conditions. If liability could lie with the union under the common law, it would be because of negligent performance of a duty assumed and not a duty otherwise imposed by the common law. As this opinion hereinafter makes clear, however, the duty is one arising under federal law, namely, the duty of fair representation. There are three cases similar to the matter at hand: Bryant v. International Union, United Mine Workers of America, 467 F.2d 1 (6th Cir. 1972), cert. denied 410 U.S. 910, 93 S.Ct. 1370, 35 L.Ed.2d 592 (1973), Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748 (1st Cir. 1971) and Helton v. Hake, 386 F.Supp. 1027 (W.D.Mo.1974). In. Bryant representatives of the estates of eight deceased miners brought actions against decedents’ employer and union. It was asserted that the union failed to perform its duties under a collective bargaining agreement which incorporated provisions of the Federal Mine Safety Code. The district court dismissed suit against both defendants and plaintiffs appealed from the decision as regards the union. The Sixth Circuit Court of Appeals affirmed, holding that the agreement imposed no affirmative duty on the union to inspect the mines. The court concluded that the union did not breach any duty created by the collective bargaining agreement or an obligation of fair representation. In Helton plaintiff survivors of a deceased employee brought suit against a union which removed the case to federal court. The court held that removal was improper for there was no breach of a duty of fair representation. It was stated that" }, { "docid": "1210596", "title": "", "text": "a “suit for violation of (a) contract(s)” so as to confer Section 301 original jurisdiction in this Court. The complaint predicates its claim for relief upon the “negligent and careless” failure to enforce a work rule by the shop steward, enforcement of such rule being a duty assumed by the union in the collective bargaining agreement, arguably, and obviously, for the benefit and protection of its members. The only reported case in which a federal appellate court has confronted itself with a factual and contractual context similar to that raised by the insant complaint appears to have been in Bryant v. International Union, U. M. W. of America, 467 F.2d 1 (6th Cir. 1972) which arose out of a 1968 mine disaster in which nine miners were killed. In that case, suit was brought under Section 301 against the employer and the union. The collective bargaining agreement had adopted by reference the Federal Mine Safety Code. Plaintiffs’ complaint alleged that the employer had failed to conform its operations to the Safety Code’s requirements, and that the union had failed to enforce compliance with the Code, a duty that the union had undertaken in the collective bargaining agreement. Summary judgment was granted by the District Court against the plaintiffs and in favor of all defendants. Only the plaintiff’s complaint against the union was appealed. The Sixth Circuit, without ever addressing itelf to the question of jurisdiction, and after assuming plaintiffs had standing to sue, held that the contract did not impose any mandatory, affirmative duty upon the defendant union upon which liability against the union could be predicated for the union’s failure to perform. With particular reference to this case, plaintiffs in Bryant alleged, among other things, that the union had breached its obligations under the collective bargaining agreement by failing to make periodic inspections of the mine. However, the use in the contract of the term “may inspect” the mines led the Court to conclude that no affirmative duty to inspect the mines was imposed upon the union by the agreement, but rather the agreement only granted a privilege to" }, { "docid": "16592652", "title": "", "text": "93 S.Ct. 1370, 35 L.Ed.2d 592 (1973), Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748 (1st Cir. 1971) and Helton v. Hake, 386 F.Supp. 1027 (W.D.Mo.1974). In. Bryant representatives of the estates of eight deceased miners brought actions against decedents’ employer and union. It was asserted that the union failed to perform its duties under a collective bargaining agreement which incorporated provisions of the Federal Mine Safety Code. The district court dismissed suit against both defendants and plaintiffs appealed from the decision as regards the union. The Sixth Circuit Court of Appeals affirmed, holding that the agreement imposed no affirmative duty on the union to inspect the mines. The court concluded that the union did not breach any duty created by the collective bargaining agreement or an obligation of fair representation. In Helton plaintiff survivors of a deceased employee brought suit against a union which removed the case to federal court. The court held that removal was improper for there was no breach of a duty of fair representation. It was stated that a mere negligent failure of a union to perform a duty owed to its members under a collective bargaining agreement does not state a claim sufficient to invoke Section 301(a) jurisdiction. In Brough plaintiff received workmen’s compensation benefits for injuries sustained while operating an allegedly faulty machine. Plaintiff’s original complaint sounded in common law tort; however, after the union removed the matter to federal court, plaintiff added a second count, alleging denial of fair representation. The First Circuit Court of Appeals affirmed dismissal of Count Two and stated: “The Labor Management Relations Act imposes upon the exclusive bargaining representative only a duty of good faith representation, not a general duty of due care.” Supra, at 750. The court was then confronted with proper disposition of the original common law negligence count, and opted in favor of remand, observing as follows: “Even though ultimately there may be a question of federal law, the state court can appropriately decide that question. In the meantime interpretation of the state common law will be needed, not only to determine" }, { "docid": "23693892", "title": "", "text": "S.Ct. 238, 241, 89 L.Ed. 216 (1944). The union was not required to represent each member of the bargaining unit to his or her complete satisfaction on every grievance. See e. g., Ruzicka, 523 F.2d 306, 309-10; rehearing den., 528 F.2d 912 (6th Cir. 1975) (Ruzicka I). However, to fulfill its duty, the union must have not only enforced the provisions of the collective bargaining agreement in a non-discriminatory manner, it must have also fairly represented all segments of the bargaining unit during the negotiation of each collective bargaining agreement. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231 (1976). A union fails to fairly and impartially represent all members of a bargaining unit, and thus breaches its duty of fair representation, when the union’s conduct toward any member becomes arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 71 L.Ed.2d 842 (1967); Ford Motor Company v. Huffman, supra, 345 U.S. at 338, 73 S.Ct. at 686; Ruzicka I, supra at 309-10. Bad faith or fraud is not a necessary element of a charge of unfair representation if the union’s conduct is otherwise arbitrary or perfunctory. Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 909; Ruzicka I, supra. Arbitrary perfunctory union conduct which exhibits something more than simple negligence is a breach of the duty of fair representation. See Ruzicka v. General Motors, 649 F.2d 1207 at 1212 (6th Cir. 1981) (Ruzicka II). A union is not liable for mere errors in judgment if they were made honestly and in good faith. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 1925, 29 L.Ed.2d 473 (1971). Illustrations of the type of union conduct which constitutes unfair representation include both the perfunctory treatment of a “non-grievance”, Williams v. Teamsters Local Union No. 984, 625 F.2d 138 (6th Cir. 1980), and inept handling of a grievance resulting from a union’s ignorance of the relevant provisions of the employment contract. See Milstead v. International Brotherhood of Teamsters, 580 F.2d 232 (6th" }, { "docid": "22352901", "title": "", "text": "if such is what they are, may be enforced by an individual employee. Moreover, under traditional principles of contract interpretation, respondents have no claim, for with exceptions under federal labor law not relevant here, see Lewis v. Benedict Coal Carp., 361 U. S. 459, 468-471 (1960), third-party beneficiaries generally have no greater rights in a contract than does the promisee. For respondents to have an enforceable right as third-party beneficiaries against the Union, at the very least the employer must have an enforceable right as promisee. But the provisions in the collective-bargaining agreement relied on by respondents are not promises by the Union to the employer. Cf. Teamsters v. Lucas Flour Co., 369 U. S., at 104-106. They are, rather, concessions made by the employer to the Union, a limited surrender of the employer’s exclusive authority over mine safety. A violation by the employer of the provisions allowing inspection of the mine by Union delegates might form the basis of a § 301 suit against the employer, but we are not presented with such a case. IV In performing its functions under the collective-bargaining agreement, the Union did, as it concedes, owe the miners a duty of fair representation, but we have already noted that respondents’ allegation of mere negligence will not state a claim for violation of that duty. Supra, at 372-373. Indeed, respondents have never specifically relied on the federal duty of fair representation, nor have they alleged that the Union improperly discriminated among its members or acted in arbitrary and capricious fashion in failing to exercise its duties under the collective-bargaining agreement. Cf. Vaca v. Sipes, 386 U. S., at 177. Respondents did, of course, allege that the Union had committed fraud on the membership in violation of state law, a claim that might implicate the duty of fair representation. The Supreme Court of Idaho held, however, that summary judgment was properly entered on this claim because respondents had failed to demonstrate specific facts showing the existence of a genuine issue for trial. 111 Idaho, at 633, 726 P. 2d, at 745. Respondents did not cross-petition to" }, { "docid": "1210599", "title": "", "text": "defendants’ position is that plaintiffs’ complaint is brought to “enforce” the collective bargaining agreement, and because some interpretation of that agreement appears to be necessary, Section 301(a) confers jurisdiction upon this Court. Defendants argue that because any duty imposed upon defendants was imposed under the collective bargaining agreement, and as the complaint alleges a failure to perform that duty, this is an action “for violation” of a collective bargaining agreement within the meaning of Section 301(a). This Court has not been able to find any reported case in which any federal court has held that the mere negligent failure by the union to perform a duty owed only to its own members under a collective bargaining agreement has been held sufficient to invoke Section 301(a) jurisdiction, where the failure resulted in a personal injury and the suit seeks relief via damages predicated upon negligence for the injury sustained. The case law as to whether such an action in this regard is maintainable under Section 301(a) is, at best, unclear. Neither Motor Coach Employees v. Lockridge, supra, nor Vaca v. Sipes, supra, address themselves to this question. In Bryant v. Int. Union, U.M.W. of America, supra, the jurisdictional question was not specifically addressed by the Sixth Circuit, and the contract did not provide for a mandatory affirmative duty on behalf of the Union to inspect the mines for compliance with the safety rules and regulations. As noted previously the Ninth Circuit in 1973 took the position that a Section 301(a) suit by a member-employee against his union will lie for union breaches of contractual promises in the collective bargaining agreement creating duties owed by the union to its member-employees. See Buzzard v. Local Lodge 1040 Int. Ass’n. of Mach. & A. Workers, supra. And see Beriault v. Local 40, Super Cargoes & Checkers of I.L.W.U., 501 F.2d 258 (9th Cir. 1974). However, in Dente v. International Org. of Masters, Mates & Pilots, Local 90, 492 F.2d 10 (9th Cir.) (December 5, 1973), cert. den., 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the Ninth Circuit noted that an employee’s" }, { "docid": "16592657", "title": "", "text": "a union member under the union’s duty of fair representation. In light of the collective bargaining agreement in this ease, a theory of common-law negligence for breach of an alleged safety duty is inextricably intertwined and embodied in the union’s duty of fair representation. The duty of fair representation is governed by federal law, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and federal law dictates that the exclusive duty owed in the context of this case is the duty of fair representation. Since the third-party plaintiffs categorically disclaim any reliance on a breach of fair representation, they have failed to state a claim for which relief can be granted. The foregoing reasoning is supported by Idaho case law. In Rawson v. United Steelworkers of America, Case No. 17694, etc., (First Judicial Dist., County of Shoshone, January 29, 1976) wherein the same theory of liability against the Steelworkers Union was urged by representatives of four deceased miners arising from the disaster involved in this case, the court, per Judge Towles, held that the complaints failed to-state a claim. The court, in reaching the same result as this court, stated: “ . . . However, in whatever forum this question is presented, that is, a claim of inadequate representation, the federal law would govern the disposition of the claim on its merits. “Negligent performance of its contractual duties does not state a claim under federal law for breach of fair representation. Plaintiffs’ complaint is grounded solely on recognized principles of tort law and the federal labor act does not recognize that responsibility of the union in its representative capacity.” Supra, Memorandum Decision & Order, at 3. While Rawson is on appeal to the Idaho Supreme Court, its reasoning is persuasive. It should be noted that the Bryant court analyzed the matter before it in terms of the wording of the collective bargaining agreement and since the words “may inspect any mine” were used, the court found the union’s duty was permissive. Here the agreement uses the words “shall inspect.” Even if the agreement here can be" }, { "docid": "1210597", "title": "", "text": "the union had failed to enforce compliance with the Code, a duty that the union had undertaken in the collective bargaining agreement. Summary judgment was granted by the District Court against the plaintiffs and in favor of all defendants. Only the plaintiff’s complaint against the union was appealed. The Sixth Circuit, without ever addressing itelf to the question of jurisdiction, and after assuming plaintiffs had standing to sue, held that the contract did not impose any mandatory, affirmative duty upon the defendant union upon which liability against the union could be predicated for the union’s failure to perform. With particular reference to this case, plaintiffs in Bryant alleged, among other things, that the union had breached its obligations under the collective bargaining agreement by failing to make periodic inspections of the mine. However, the use in the contract of the term “may inspect” the mines led the Court to conclude that no affirmative duty to inspect the mines was imposed upon the union by the agreement, but rather the agreement only granted a privilege to the union to inspect, if it chose to do so. In the instant case, taking the allegations contained in the complaint as true, the contract did impose upon the defendant union an affirmative duty to enforce safety rules. The complaint alleges that the union, through its agent, the steward, negligently and carelessly failed to enforce the safety rule relating to work in the area of high tension power lines. The suit is clearly brought as an action in tort seeking recovery for wrongful death due to the alleged negligence of the defendants. The only relevance of the collective bargaining agreement appears to be that it would determine, to some extent at least, the nature and scope of defendants’ duty. That defendants’ duty may have arisen under a contract does not in and of itself change the basic nature of this action, which is a suit in tort to recover damages for injuries sustained due to defendants’ alleged negligence. Compare Aetna Ins. Co. v. Hellmuth, Obata & Kassenbaum, Inc., 392 F.2d 472 (8th Cir. 1968). Essentially," }, { "docid": "22594168", "title": "", "text": "a court to interpret any term of a collective-bargaining agreement,” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261, 114 S.Ct. 2239, 2248, 129 L.Ed.2d 203 (1994) (citation and internal quotation marks omitted). These cautions do not shrink the scope of section 301 preemption, but simply emphasize that, for a claim to arise under federal law, it must depend upon the meaning of the collective bargaining agreement. 2. Preemption also can occur by operation of the so-called duty of fair representation (DFR). A union acting in its representative capacity owes this duty to those on whose behalf it acts. See Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). The duty derives from the union’s status qua exclusive bargaining agent. It implicates section 9(a) of the NLRA, and “includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967). A complaint that states a DFR claim “allege[s] a breach by the Union of a duty grounded in federal statutes and ... federal law. therefore governs [the] cause of action.” Id. Consequently, state law is preempted whenever a plaintiffs claim invokes rights derived from a union’s duty of fair representation. See Condon v. Local 2944, 683 F.2d 590, 594-95 (1st Cir.1982) (stating that “[a] union’s rights and duties as the exclusive bargaining agent in carrying out its representational functions” collectively comprise a field in which “the policy of the law is so dominated by the sweep of federal statutes that legal relations which [those rights and duties] affect must be deemed governed by federal law having its source in those statutes, rather than by local law”) (citation and internal quotation marks omitted). B. Standard of Review. Although the parties gloss over the point, we emphasize that the only appealable order that the district court entered during the short life of this case is the order denying the" }, { "docid": "23313234", "title": "", "text": "policy, 29 U.S.C. § 151, the statutory plan permits a majority of the employees in a unit to elect a union to serve as their collective bargaining agent. 29 U.S.C. § 159. The union represents all employees, not only its members, and is their exclusive agent. Id. Because the very nature of collective bargaining precludes bargaining on their own behalf by individual employees, the union has a corollary and inescapable duty fairly to represent all of the employees in the bargaining unit not only in negotiating for an agreement, but also in enforcing the provisions of that agreement throughout its term. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842; Humphrey v. Moore, 1964, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370, 367. This duty requires the union to “serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910, 17 L.Ed.2d at 850. The duty is not, however, a ministerial one of satisfying each employee’s demands at all costs; the union is the representative but not the servant of the employees. It not only may, but should, exercise judgment and discretion in its representative capacity. Its duty is violated “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 190, 87 S.Ct. at 916, 17 L.Ed.2d at 857. Cox asserts two claims, one against Mas-land for breach of the collective bargaining agreement, and the other against the union for breach of its duty of fair representation. He seeks only monetary damages from each defendant, not arbitration or judicially-decreed reinstatement, remedies equitable in nature because they are in effect specific performance. See C. Wright & A. Miller, Federal Practice and Procedure § 2309 (1971). The monetary recompense for which he prays is the traditional common law remedy. In Vaca the Court stated that an employee is not restricted in such circumstances to" }, { "docid": "16592650", "title": "", "text": "to and during the fire which occurred on May 2, 1972. It is further alleged that such negligence was a proximate cause of plaintiffs’ damages. Under federal law a union member may sue his union when the union has breached a duty of “fair representation.” Section 301(a), Labor Management Relations Act, 29 U.S.C.A. § 185(a). Third-party plaintiffs do not assert that the unions breached their duty of fair representation; rather, they rely upon an alleged common law tort committed by the unions in negligently performing a duty assumed. The assumed duty allegedly arises from provisions contained in a collective bargaining agreement. In part, because the alleged safety duty is embodied in a collective bargaining agreement and because, traditionally, this area is a matter of federal law, third-party defendants argue that no such common law cause of action exists; rather, they urge that the unions’ duty is exclusively that of fair representation. The Supreme Court of California has permitted suits against unions for negligent maintenance of union property and intentional torts committed by union members at a union meeting. Marshall v. International Longshoremen’s & W. U. Local 6, 57 Cal.2d 781, 22 Cal.Rptr. 211, 371 P.2d 987 (1962); Inglis v. Operating Engineers Local Union No. 12, 58 Cal.2d 269, 23 Cal.Rptr. 403, 373 P.2d 467 (1962). Duties arising in the above eases are dissimilar to the duty asserted in this case. The distinguishing fact is that here an action for damages (if the union members or personal representatives had instituted suit) flows from a contractual obligation undertaken by the union to benefit its members and their working conditions. If liability could lie with the union under the common law, it would be because of negligent performance of a duty assumed and not a duty otherwise imposed by the common law. As this opinion hereinafter makes clear, however, the duty is one arising under federal law, namely, the duty of fair representation. There are three cases similar to the matter at hand: Bryant v. International Union, United Mine Workers of America, 467 F.2d 1 (6th Cir. 1972), cert. denied 410 U.S. 910," }, { "docid": "16592659", "title": "", "text": "read to impose a mandatory duty, liability does not automatically ac crue for personal injuries allegedly resulting from a breach of fair representation. Similarly, a union’s failure to file a grievance or carry the grievance forward does not automatically give rise to a breach of fair representation. See: Vaca v. Sipes, supra. With reference to certain sections embodying the Federal Mine Safety Code in the collective bargaining agreement in Bryant, the court noted that in instances where federal mine inspectors have reported violations, the agreement does not require the union to compel performance in accordance with the safety code. The court stated: “Collective bargaining agreements are literally agreements between unions and employees; the Union negotiators are intent on gaining the maximum power possible from management negotiators. Whether or not they choose to exercise all the power gained depends on a variety of situations relating to the overall employment situation in the industry. It would be a mistake of vast proportion to read every power granted the union by management as creating a corollary contract right in the employee as against the union. Such interpretation of collective bargaining agreements would simply deter unions from engaging in the unfettered give and take negotiation which lies at the heart of the collective bargaining agreement.” Supra at 5. Finally, and most importantly, the court stated: “To saddle labor unions with liability for the mine operators’ failure to comply with standards introduced into the contract at the union’s bidding would simply be to discourage the inclusion of similar or more effective standards in later contracts. Such result would not serve the interest of miners and would retard rather than advance the goals of the National Labor Policy.” Supra at 5-6. It has traditionally been the duty of employers to furnish a safe place of employment. Such a policy is reflected in the common law, labor law, workmen’s compensation laws, Federal Mine Safety Code and the Occupational Safety and Health Act. To permit a sanction of legal liability to accompany a union’s exercise of responsibility in safety matters, together with either loss shifting or sharing, would" }, { "docid": "22352880", "title": "", "text": "Justice White delivered the opinion of the Court. We granted certiorari in this case because the decisions of the Supreme Court of Idaho, holding that petitioner may be liable under state law for the negligent inspection of a mine where respondents’ decedents worked, raised important questions about the operation of federal and state law in defining the duties of a labor union acting as a collective-bargaining agent. I This dispute arises out of an underground fire that occurred on May 2, 1972, at the Sunshine Mine in Kellogg, Idaho, and caused the deaths of 91 miners. Respondents, the survivors of four of the deceased miners, filed this state-law wrongful-death action in Idaho state court. Their complaint alleged that the miners’ deaths were proximately caused by fraudulent and negligent acts of petitioner United Steelworkers of America (Union), the exclusive bargaining representative of the miners working at the Sunshine Mine. As to the negligence claim, the complaint specifically alleged that the Union “undertook to act as accident prevention representative and enforcer of an agreement negotiated between [sic] [the Union] on behalf of the deceased miners,” App. 53-54, and “undertook to provide representatives who in spected [the Sunshine Mine] and pretended to enforce the contractual accident prevention clauses,” id., at 54. Respondents’ answers to interrogatories subsequently made clear that their suit was based on contentions that the Union had, through a collective-bargaining agreement negotiated with the operator of the Sunshine Mine, caused to be established a joint management-labor safety committee intended to exert influence on management on mine safety measures; that members of the safety committee designated by the Union had been inadequately trained on mine safety issues; and that the Únion, through its representatives on the safety committee, had negligently performed inspections of the mine that it had promised to conduct, failing to uncover obvious and discoverable deficiencies. Id., at 82-83. The trial court granted summary judgment for the Union, accepting the Union’s argument that “federal law has preempted the field of union representation and its obligation to its membership,” App. to Pet. for Cert. 164a, and that “[negligent performance of [a" }, { "docid": "16592649", "title": "", "text": "right of union members (or personal representatives) to sue the union to which the various members belonged. Any right to file a third-party complaint must rest upon the existence of a right of union members to sue their union. Even though such members or personal representatives may choose not to sue, the third-party plaintiffs may rely upon said right, if it exists, and file a third-party complaint against the union. Initially, therefore, this court must analyze a supposed cause of action by a union member against his union. The third-party complaints state that the third-party defendants undertook a duty to act as accident prevention representatives and safety enforcers under a labor agreement entered into by the third-party defendants and Sunshine Mine for the benefit of union members. It is alleged that the third-party defendants were negligent in allowing unsafe conditions to exist in the mine, in failing to exercise due care for the health and safety of decedent members, and in failing to provide decedents a reasonably safe place to perform their required duties prior to and during the fire which occurred on May 2, 1972. It is further alleged that such negligence was a proximate cause of plaintiffs’ damages. Under federal law a union member may sue his union when the union has breached a duty of “fair representation.” Section 301(a), Labor Management Relations Act, 29 U.S.C.A. § 185(a). Third-party plaintiffs do not assert that the unions breached their duty of fair representation; rather, they rely upon an alleged common law tort committed by the unions in negligently performing a duty assumed. The assumed duty allegedly arises from provisions contained in a collective bargaining agreement. In part, because the alleged safety duty is embodied in a collective bargaining agreement and because, traditionally, this area is a matter of federal law, third-party defendants argue that no such common law cause of action exists; rather, they urge that the unions’ duty is exclusively that of fair representation. The Supreme Court of California has permitted suits against unions for negligent maintenance of union property and intentional torts committed by union members at" }, { "docid": "16592658", "title": "", "text": "held that the complaints failed to-state a claim. The court, in reaching the same result as this court, stated: “ . . . However, in whatever forum this question is presented, that is, a claim of inadequate representation, the federal law would govern the disposition of the claim on its merits. “Negligent performance of its contractual duties does not state a claim under federal law for breach of fair representation. Plaintiffs’ complaint is grounded solely on recognized principles of tort law and the federal labor act does not recognize that responsibility of the union in its representative capacity.” Supra, Memorandum Decision & Order, at 3. While Rawson is on appeal to the Idaho Supreme Court, its reasoning is persuasive. It should be noted that the Bryant court analyzed the matter before it in terms of the wording of the collective bargaining agreement and since the words “may inspect any mine” were used, the court found the union’s duty was permissive. Here the agreement uses the words “shall inspect.” Even if the agreement here can be read to impose a mandatory duty, liability does not automatically ac crue for personal injuries allegedly resulting from a breach of fair representation. Similarly, a union’s failure to file a grievance or carry the grievance forward does not automatically give rise to a breach of fair representation. See: Vaca v. Sipes, supra. With reference to certain sections embodying the Federal Mine Safety Code in the collective bargaining agreement in Bryant, the court noted that in instances where federal mine inspectors have reported violations, the agreement does not require the union to compel performance in accordance with the safety code. The court stated: “Collective bargaining agreements are literally agreements between unions and employees; the Union negotiators are intent on gaining the maximum power possible from management negotiators. Whether or not they choose to exercise all the power gained depends on a variety of situations relating to the overall employment situation in the industry. It would be a mistake of vast proportion to read every power granted the union by management as creating a corollary contract right" }, { "docid": "16592669", "title": "", "text": "and job security therefore became the business of certified or recognized bargaining agents, as did the contractual procedures for the processing and settling of grievances, including those with respect to discharge.” ****** “ . . . the duty of fair representation has served as a ‘bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.’ ” 96 S.Ct. at 1056, 47 L.Ed.2d at 241. . In Dente v. International Org. of Masters, Mates & P., Local 90, 492 F.2d 10 (9th Cir. 1974), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), plaintiff sought relief under Section 301(a), and the court held that the complaint under that section was proper, however, negligent conduct by the union was not sufficient to uphold relief. Plaintiff also asserted what was labeled a separate theory of recovery—a recovery based on breach of the collective bargaining agreement. The court stated: “The right of an employee to sue his union under section 301(a) is limited to those cases wherein there has been a breach of duty of fair representation by the union . . Collective bargaining agreements are unique in nature, and the current limitations on the employee’s right to sue under section 301(a) are not so restrictive as substantially to impair his protective remedies.” 492 F.2d at 12, footnote 4. (Emphasis added). The remedy of fair representation is broad and where it flows from a collective bargaining agreement, the Ninth Circuit intimates that it is exclusive. . Negligence on the part of the union is insufficient to impose liability for breach of a duty of fair representation. Dente v. International Org. of Masters, Mates & P., Loc. 90, supra; Brough v. United Steelworkers of America, AFL-CIO, supra; Helton v. Hake, supra. See also: Vaca v. Sipes, supra; Beriault v. Local 40, Super Cargoes & Check, of I.L. & W.U., supra. . Examination of Article IX entitled “Safety and Health” reveals that a union member’s rights, as well as the union’s rights regarding results of an inspection are rather limited. The mine" }, { "docid": "6231199", "title": "", "text": "Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1971); In re Carter, 618 F.2d 1093, 1104 (5th Cir. 1980); Smith v. Local 25, Sheet Metal Workers International Association, 500 F.2d 741, 748 (5th Cir. 1974). The National Labor Relations Act is an “Act of Congress Regulating Commerce,” Capital Service, Inc. v. NLRB, 347 U.S. 501, 504, 74 S.Ct. 699, 701, 98 L.Ed. 887 (1954), under which arises a union’s duty to represent fairly all employees in the bargaining unit, Foust, 442 U.S. at 46 n.8, 99 S.Ct. at 2125 n.8; Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed. 370 (1964). The Union concedes that an action for violation of the duty of fair representation is not preempted by the National Labor Relations Act. Motor Coach Employees, 403 U.S. at 299-301, 91 S.Ct. at 1924-25; Vaca v. Sipes, 386 U.S. at 182-83, 87 S.Ct. at 912-13. The Union contends, nonetheless, that the doctrine of fair representation is limited to the Union’s representation of employees in its dealings with the employer. The Union argues that the doctrine does not encompass a union’s relations with the employees in the bargaining unit except as these relations involve the employer. It urges that a suit involving a union’s relations with employees in the bargaining unit does not come within the Vaca v. Sipes exception to the National Labor Relations Board’s exclusive jurisdiction over matters which, arguably, are unfair labor practices, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). We have not directly faced this question. Cf. Augspurger v. Brotherhood of Locomotive Engineers, 510 F.2d 853 (8th Cir. 1975). In Augspurger, this court denied relief, however, because plaintiffs failed to allege that the misrepresentation of seniority rights in a merger agreement was made in bad faith. Id. at 859. Two of our sister circuits have specifically recognized, the union’s duty not to misrepresent deliberately union bargaining efforts and" }, { "docid": "1210600", "title": "", "text": "supra, nor Vaca v. Sipes, supra, address themselves to this question. In Bryant v. Int. Union, U.M.W. of America, supra, the jurisdictional question was not specifically addressed by the Sixth Circuit, and the contract did not provide for a mandatory affirmative duty on behalf of the Union to inspect the mines for compliance with the safety rules and regulations. As noted previously the Ninth Circuit in 1973 took the position that a Section 301(a) suit by a member-employee against his union will lie for union breaches of contractual promises in the collective bargaining agreement creating duties owed by the union to its member-employees. See Buzzard v. Local Lodge 1040 Int. Ass’n. of Mach. & A. Workers, supra. And see Beriault v. Local 40, Super Cargoes & Checkers of I.L.W.U., 501 F.2d 258 (9th Cir. 1974). However, in Dente v. International Org. of Masters, Mates & Pilots, Local 90, 492 F.2d 10 (9th Cir.) (December 5, 1973), cert. den., 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the Ninth Circuit noted that an employee’s right to sue his union under Section 301(a) is limited to those situations in which the union’s breach of duty rises to the level of a denial of the duty of fair representation. In Richardson v. Comm. Wkrs. of America, 443 F.2d 974 (8th Cir. 1971), the plaintiff employee brought suit against both the employer and the union for wrongful discharge and for discrimination. The suit against the union was predicated upon Section 301(a) jurisdiction arising out of a clause of the collective bargaining agreement that prevent ed the union from discriminating against employees due to membership or nonmembership in the union, and from intimidating or coercing any employee into joining the union or continuing membership therein. The factual context involved an employee who had withdrawn from union membership and was thereafter harassed by union members and eventually wrongfully discharged, for alleged violations of company rules, at the urging of the union. The Eighth Circuit held that the essence of plaintiff’s claim against the union was not for breach of contract, but rather for breach" } ]

[ { "docid": "10878901", "title": "", "text": "habeas corpus. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, which is binding unless and until overruled by this Court en banc. . The district court held that the restriction of Dr. Rodriguez's testimony was harmless error. Of course, this holding conflicts with our finding that the evidence was critical to Boykins’s defense and with the precedent of this Circuit emphasizing the importance of psychiatric history to any determination of insanity. Where the substantive standard of constitutional error contains a requirement that the excluded evidence be \"crucial, critical, highly significant” the harmless error doctrine is inapplicable. See United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir.1979) (violation of the constitutional guarantee that an accused be able to present witnesses in his own defense is prejudicial per se). . At oral argument before this Court, the State claimed that it had raised the waiver issue before the district court in its motion to strike. That motion did assert that certain of Boykins's claims had been waived, but did not identify those claims except by reference to Boykins’s state habeas petition in which he acknowledged not having pursued certain arguments on direct appeal. His \"Rodriguez” claim was not among those he admitted to have neglected. The State’s motion to strike did not attempt to explain the distinction between Boykins’s state evidence law claim, which he did raise on direct appeal, and his federal constitutional claim. Consequently, we are unwilling to hold that Boykins has forfeited his right to raise the constitutional claim because he made the same error on direct appeal. LYNNE, District Judge, concurring and dissenting: While I concur in Parts I and III of the opinion, I cannot join in Part II. I, of course, agree with the general rule that federal courts reviewing habeas corpus petitions are not empowered to correct erroneous evidence rulings of state trial courts and that there is a well recognized exception thereto; that fundamental fairness is violated" } ]

[ { "docid": "6004102", "title": "", "text": "opinion, we rejected Abrams’ contention that various evidentiary rulings made by the trial judge deprived him of due process. We began by noting that “[t]he admissibility of evidence is generally a matter of state law” and that, “[ajbsent a showing that the admission of evidence violated a specific constitutional guarantee, a federal court can issue a writ of habeas corpus ... only when the ruling violated the defendant’s right to due process ____” Milone v. Camp, 22 F.3d 693, 702 (7th Cir.1994). After examining the alleged errors, we concluded that none of the state court’s rulings were erroneous, much less resulted in a denial of Abrams’ right to a fundamentally fair trial. Our examination of these claims was in no way limited by the amendments to section 2254. We therefore adopt our prior discussion of these issues in toto. See Abrams, 100 F.3d at 493-94. For the foregoing reasons, we once again Affirm the judgment of the district court denying Abrams’ petition for writ of habeas corpus. . Because Abrams' original brief was filed before the AEDPA went into effect, his arguments were not tailored to take into account the requirements of the new habeas corpus provisions. . Former section 2254(d)'s presumption of factual correctness is now contained in section 2254(e). . As we recognized in our prior opinion, see Abrams, 100 F.3d at 489 n. 2, Abrams did not raise on direct review to the Appellate Court of Illinois his claim that the inability to consult with his attorney in private violated his right to testify under the Fourteenth Amendment; he has therefore waived the right to have this claim reviewed in federal habeas corpus proceedings. See Farrell v. Lane, 939 F.2d 409, 411 (7th Cir.1991). . In addition, as we noted in our original opinion, the absence of any meaningful explanation to the court by Abrams' counsel as to why it was necessary to confer privately with his client provides further support for our holding that Abrams was not unconstitutionally deprived of counsel. See Abrams, 100 F.3d at 491-92 (citing Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th" }, { "docid": "22218440", "title": "", "text": "GARWOOD, Circuit Judge: Petitioner-appellant James D. Koch (Koch) appeals the district court’s denial of his petition for writ of habeas corpus challenging his Mississippi murder conviction. We affirm. Facts and Proceedings Below Koch was convicted by a Mississippi state jury of murder and sentenced to life imprisonment. Upholding his conviction on direct appeal, where he was represented by his trial counsel, the Mississippi Supreme Court held, inter alia, that the evidence presented at trial was sufficient to support the jury verdict and that the trial court properly admitted rebuttal testimony as to Koch’s prior violent threat against the victim. The evidence presented at trial, as well as other grounds raised on direct appeal, is set forth in detail in Koch v. State, 506 So.2d 269 (Miss.1987). In state collateral proceedings, the Mississippi Supreme Court denied, without conducting an evi-dentiary hearing or rendering a written opinion, Koch’s pro se application for leave to file for post-conviction relief on the following four grounds: (1) ineffective assistance of counsel; (2) counsel conflict of in terest; (3) perjured testimony of three government witnesses; and (4) prosecutorial misconduct. Koch filed a pro se petition for writ of habeas corpus with the United States District Court for the Southern District of Mississippi, alleging the same four grounds enumerated in his state collateral proceeding. See 28 U.S.C. § 2254. The court referred Koch’s petition to a magistrate. Following cross-motions for summary judgment, the magistrate, without conducting an evidentiary hearing, recommended that Koch’s habeas petition be denied. Because Koch had not raised any of the claims asserted in his section 2254 petition on direct state appeal, the magistrate found that Koch’s perjured testimony and prosecutorial misconduct claims were procedurally barred on an adequate and independent state ground. See Miss.Code Ann. §§ 99-39-3(2), 99-39-21 (Supp.1989) (procedural waiver of claims not raised on direct appeal absent showing of cause and actual prejudice). The magistrate also noted that the prosecutorial misconduct claim was frivolous and without merit. The magistrate was persuaded by the trial record that Koch failed to satisfy either the performance or prejudice prongs of his ineffective assistance claim" }, { "docid": "5550205", "title": "", "text": "is petitioner’s contention that he does not seek to admit evidence of polygraph results, but only evidence that the question was asked and that Chester refused to answer. Petitioner also contends that the trial court’s exclusion of this evidence constituted a denial of his Sixth Amendment right to cross-examination and a deprivation of his right to defend himself against the state’s accusations. In his brief on direct appeal, Laird presented this claim to the Pennsylvania Supreme Court as a question of state law, citing one Pennsylvania case concerning state law issues, Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978). Br. for Appellant at 45 (July 19, 1989). The state Supreme Court was thus not on notice that a federal claim was being asserted. See supra Part 111(A)(1). On direct review, the Pennsylvania Supreme Court treated the issue as an evidentiary claim, writing that “[t]his Court has repeatedly and consistently held that results of a polygraph examination are inadmissible for any purpose.” Chester, 526 Pa. at 597, 587 A.2d at 1376. The issue was not presented in Laird’s PCRA petition. Notwithstanding this fact, the Court determines that this claim is exhausted as it would have been deemed previously litigated had it been presented on PCRA appeal. Because the claim was never fairly presented as a federal issue, however, the Court concludes that the claim is procedurally defaulted and may not be reached absent a showing of cause and prejudice or a fundamental miscarriage of justice. Petitioner cannot establish prejudice or a miscarriage of justice with respect to this issue. As a general rule, evidentiary errors made by the state court are not considered to be of constitutional proportions, such that they are cognizable in a federal habeas proceeding, unless the error deprives the defendant of fundamental fairness in his criminal trial. See Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir.1998) (“We will not grant federal habeas corpus relief based on an evidentiary ruling unless the ruling affects the funda mental fairness of the trial”), reh’g denied, 163 F.3d 1362 (11th Cir.1998), cert. denied, 527 U.S. 1025, 119 S.Ct." }, { "docid": "22616438", "title": "", "text": "subsequent federal habeas corpus proceeding, the District Court held that the procedural default in the state appellate court effected a waiver of any right to federal relief and therefore dismissed the petition without examining the victim’s statements. The Court of Appeals, however, concluded that there was no waiver if counsel’s omission was the consequence of inadvertence and ordered a remand for a hearing to determine whether the lawyer had made a deliberate decision to omit the error from the petition for appeal. We granted certio-rari to review that decision. This Court now reverses, holding that there is no need for a hearing on counsel’s motivation and that, instead, the District Court should determine whether there is merit to the habeas corpus application by making an examination of the victim’s statements. I concur in its judgment remanding the case for further proceedings on the substance of the claim, and dispensing with the procedural hearing ordered by the Court of Appeals; I disagree, however, with much of what the Court has written about “cause and prejudice,” as well as with its announcement of a new standard to govern the District Court’s ultimate disposition of the case. f — I The character of respondent’s constitutional claim should be central to an evaluation of his habeas corpus petition. Before and during his trial on charges of rape and abduction, his counsel made timely motions for discovery of the statements made by the victim to the police. By denying those motions, the trial court significantly curtailed the defendant’s ability to cross-examine the prosecution’s most important witness, and may well have violated the defendant’s right to review “evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment.” Brady v. Maryland, 373 U. S. 83, 87 (1963). That right is unquestionably protected by the Due Process Clause. Ibid. See also United States v. Bagley, 473 U. S. 667 (1985); United States v. Agurs, 427 U. S. 97 (1976). Indeed, the Court has repeatedly emphasized the fundamental importance of that federal right. The constitutional claim advanced by" }, { "docid": "14848023", "title": "", "text": "that his evidence will show, he cannot, as a matter of law, prevail on the tainted jury issue. We therefore affirm the district court’s dismissal of this claim. III. Dillard’s second contention on appeal is that his conviction ought to be set aside because the state trial court erroneously admitted evidence of his previous guilty plea to a crime against the same victim that he has now been convicted of killing. When a federal court reviews state court evidentiary rulings on a petition for habeas corpus, it may grant relief only if there has been an infraction that renders the entire trial fundamentally unfair. Banks v. McGougan, 717 F.2d 186,190 (5th Cir.1983). The evidentiary ruling challenged here clearly does not rise to the level of a constitutional violation. Approximately two years before Tat-man’s murder, Dillard pleaded guilty to the attempted burglary of Tatman’s home. In both crimes, the same investigating police officer found that the same screen had been removed from the same window, the same window had been tampered with, and the telephone wires had been separated in the same manner. The state courts admitted the evidence of the earlier crime and guilty plea because the similarity of the two methods helped to identify the defendant as the perpetrator of the offense charged. Both the Federal Rules of Evidence, Fed.R.Evid. 404(b), and Louisiana law, La. Rev.Stat.Ann. §§ 15:445 and 15:446 (West 1981), allow evidence of other crimes to be admitted for the limited purposes of demonstrating a defendant’s intent, common plan or system, or knowledge. Because the state court complied with Louisiana law in admitting the evidence for the limited purpose of showing similarity of method, we find no violation of Dillard’s rights, and certainly no constitutional infraction of any kind in regard to this issue. IV. In granting Dillard’s motion for certificate of probable cause, a judge of this court requested the parties to brief the issue whether the district court erred by dismissing Dillard’s petition without having before it the entire state court record. Accordingly, Dillard states that he was denied a full and fair review of" }, { "docid": "6713334", "title": "", "text": "is concluded, the district court will weigh the evidence, make the necessary credibility determinations and, ultimately, determine whether the appellant has been afforded constitutionally adequate representation. 2. Procedural Default. We now address the district court’s determination that the appellant failed to raise in the state court proceedings the contention that his plea was involuntary. The district court correctly noted that in his state post-conviction relief petition Yordan emphasized the trial court’s failure to interrogate him properly regarding the voluntariness of his plea, while in his federal petition Yordan has emphasized that his plea was involuntary as a result of misinformation provided by his attorney. We disagree, however, with the district court’s conclusion that Yordan’s federal claim is procedurally barred. A fair reading of the appellant’s pro se brief in support of his state court post-conviction petition, along with the legal conclusions reached by the state court in denying that petition, shows that the substance of the appellant’s involuntary plea claim was presented to, and ruled upon by, the state court. See Cummings v. Dugger, 862 F.2d 1504, 1507 (11th Cir.1989) (federal habeas corpus claim not procedurally barred when substance of claim is previously raised in state court); Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983) (even though issue is “obliquely stated” in state court proceedings, issue not procedurally barred in subsequent federal proceedings where state court is alerted to the issue). In the present case, the appellant argued in his state post-conviction petition that the state trial court erred when it failed to provide him with an interpreter; in relation to this argument, the appellant contended he did not understand, first, that the 25-year sentence was without parole and second, that he was pleading guilty to the full crime as charged, rather than a lesser included offense. Rl-6-App.3A-6. In arguing that he received ineffective assistance of counsel, the appellant also stated that his attorney’s advice led him to enter a plea that was not “intelligent, knowing and voluntary.” Rl-6-App.3A-20. Moreover, the state appellate court expressly recognized and then ruled upon Yordan’s involuntary plea claim. In the portion of its" }, { "docid": "21081639", "title": "", "text": "through due diligence, Lusk or his various lawyers should have known about the competency issue. In fact, Lusk’s lawyer in the 1977 conviction knew of the competency determination and stipulated at trial to the three psychiatric reports that found Lusk competent. In subsequent appeals of that conviction, none of Lusk’s lawyers addressed the competency claims before the effect of the procedural bar. We conclude that Lusk’s competency challenge could have been raised before the issue became procedurally barred under Rule 3.850. Lusk also argues that even if the procedural bar stands, he has demonstrated cause for and prejudice resultmg from the default, or at a minimum, he has raised is sues of fact that warrant an evidentiary hearing into cause and prejudice. In the face of three psychiatric reports finding Lusk competent to stand trial, we conclude, however, that the district court did not err in finding no cause and prejudice, and consequently, in denying habeas corpus relief to Lusk without an evidentiary hearing. Walker v. Davis, 840 F.2d 834, 839-840 (11th Cir.1988). Accordingly, we affirm the district court’s decision that a state procedural bar precludes federal habeas corpus review of Lusk’s claims. AFFIRMED. . On June 10, 1977, Lusk filed a pro se petition for a writ of habeas corpus in the trial court. That petition, however, was withdrawn on June 29, 1977. . See Fla.R.Crim.Pro. 3.210(b). Rule 3.210(b) provides that [i]f, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the hearing. Attorneys for the state and the defendant may be present at the examination. Here, the" }, { "docid": "23420147", "title": "", "text": "issue on direct review, concluding that the videotape — which pictured the bloody murder scene as well as the victim’s body— was neither cumulative of other crime scene photographs nor more prejudicial than probative: While the videotape is graphic, it is not so gruesome as to be considered prejudicial. The victim is in the background and his head is turned away so the major injuries inflicted upon the victim are not being constantly shown to the jury. The videotape does have probative value since no pictures were admitted that showed the deceased’s head or shoulders, where the majority of the injuries were sustained. The videotape also corroborates the medical examiner’s testimony and refutes [Duckett’s] theory that the crime was committed without malice. Duckett, 919 P.2d at 16. We may not provide habeas corpus relief on the basis of state court evidentiary rulings “unless they rendered the trial so fundamentally unfair that a denial of constitutional rights results.” Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir.), cert. denied, 531 U.S. 1020, 121 S.Ct. 586, 148 L.Ed.2d 501 (2000). “[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements,” when engaged in such an endeavor a federal court must “tread gingerly” and exercise “considerable self-restraint.” United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir.1990). Acknowledging these standards, the district court determined that admission of the videotape “was not so unduly prejudicial as to render the proceedings against petitioner fundamentally unfair.” (1 R. Doc. 62 at 62 (quotation omitted).) Having ourselves reviewed the videotape and the record as a whole, we agree with the district court that Duckett’s trial was not rendered fundamentally unfair by the videotape’s introduction into evidence. We do not accept Duckett’s argument that the only purpose the videotape could have served at trial was to prove the applicability of the “heinous, atrocious, or cruel” aggravating circumstance and that, because the videotape failed to prove that the victim consciously suffered, its probative value was nil. (Appellant’s Br. Expanded COA at 4-5, 8-9.) To the contrary, the videotape was admitted during the guilt phase of the trial," }, { "docid": "2777226", "title": "", "text": "no doubt prejudicial to petitioner.” The district court granted the writ and the Warden appealed. II. ADMISSION OF OTHER CRIME EVIDENCE The Warden does not dispute in this appeal the Illinois Appellate Court’s conclusion that the other crimes testimony introduced during Searcy’s trial was inadmissible. The dispute in this case is whether that error rendered Searcy’s trial fundamentally unfair and thus an error cognizable in a federal habeas corpus proceeding. The Illinois Appellate Court held that the error of introducing the evidence was harmless; the district court found that the inadmissible evidence was “no doubt prejudicial,” and therefore not harmless. Trial rules regarding the admissibility of evidence in a state criminal trial are matters of state law. Violations of state evidentiary laws generally do not form the basis upon which federal habeas corpus relief can be granted. A habeas proceeding concerns only whether federal constitutional rights were infringed. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir.1982) (per curiam). Violations of state evidentiary rules, therefore, “may not be questioned in federal habeas proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights.” Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). The other crimes evidence in this case did not create a fundamentally unfair trial. Hardin observed her assailant for fifteen to twenty minutes, in dim but nonetheless adequate light. Although the petitioner contests the reliability and persuasiveness of this testimony, we believe that the record adequately supports the correctness of the Illinois Appellate Court’s determination that her testimony was reliable and convincing. Searcy argues in his brief that the district court found this evidence unreliable and unconvincing. We do not think that it is clear that this is the district court’s conclusion. To the extent that this is the district court’s holding, however, we find it incorrect. In a federal habeas action, state fact determinations are presumed correct unless that determination “is" }, { "docid": "22616437", "title": "", "text": "is determined on remand that the victim’s statements contain material that would establish respondent’s actual innocence. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Blackmun joins, concurring in the judgment. The heart of this case is a prisoner’s claim that he was denied access to material that might have established his innocence. The significance of such a claim can easily be lost in a procedural maze of enormous complexity. The nature of the prisoner’s claim, and its importance, would be especially easy to overlook in this case because the case involves at least four possible procedural errors. A Virginia trial judge may have erroneously denied respondent’s counsel access to statements that the victim had made to the police. The Virginia Supreme Court did not address this issue because, although respondent’s counsel included it in the assignment of errors in his “notice of appeal,” he omitted it from his “petition for appeal.” In a subsequent federal habeas corpus proceeding, the District Court held that the procedural default in the state appellate court effected a waiver of any right to federal relief and therefore dismissed the petition without examining the victim’s statements. The Court of Appeals, however, concluded that there was no waiver if counsel’s omission was the consequence of inadvertence and ordered a remand for a hearing to determine whether the lawyer had made a deliberate decision to omit the error from the petition for appeal. We granted certio-rari to review that decision. This Court now reverses, holding that there is no need for a hearing on counsel’s motivation and that, instead, the District Court should determine whether there is merit to the habeas corpus application by making an examination of the victim’s statements. I concur in its judgment remanding the case for further proceedings on the substance of the claim, and dispensing with the procedural hearing ordered by the Court of Appeals; I disagree, however, with much of what the Court has written about “cause and prejudice,” as" }, { "docid": "15384160", "title": "", "text": "an evidentiary hearing on his post-conviction petition; and (3) the Illinois Appellate Court, in its review of the circuit court’s dismissal of his post-conviction petition, improperly applied the doctrine of waiver and erroneously failed to reach the merits of his allegation of ineffective assistance of counsel at trial. The district court granted a motion to dismiss the petition holding that because the petitioner had failed to show good cause for failing to raise the issue of competence of trial counsel in his direct appeal or of his appellate counsel in his post-conviction petition, he waived both of the incompetence issues for purposes of federal habeas corpus. The district court further found that the petitioner’s arguments that he was improperly denied an evidentiary hearing on his post-conviction petition and that the Illinois Appellate Court improperly applied the waiver doctrine raised only state law issues under the Illinois Post-Conviction Hearing Act; the two alleged errors were not reviewable on a petition for habeas corpus. In his appeal to this court, the petitioner disagrees and argues that neither of his ineffective assistance of counsel arguments was waived. II. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state prisoner, barred by a procedural default from raising a constitutional claim on direct appeal, could not litigate the barred claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default. In United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc), our court applied the Sykes “cause and prejudice” standard to a state prisoner’s failure to raise a claim on direct appeal. Our decision to apply the cause and prejudice standard to appellate waiver was based on principles of comity and federalism: “The fundamental requirement that a petitioner first present his claims to the state court is rooted in the belief that ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a" }, { "docid": "4313911", "title": "", "text": "default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Id. at 263, 109 S.Ct. at 1043 (internal quotations omitted). Under the authority of Harris, we concluded in Hull that the denial of allocatur was a decision on the merits because the dismissal of Hull’s nunc pro tunc petition did not “clearly and expressly” state that it rested on a state procedural ground, and we therefore proceeded to consider the merits of Hull’s claim. A month after the Hull decision, the Supreme Court decided Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 2552, 115 L.Ed.2d 640 (1991), a case it introduced as one about federalism that “concerns the respect that federal courts owe the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.” Coleman, who had been convicted in Virginia of rape and capital murder and sentenced to death, filed a state habeas petition raising several federal constitutional claims. After denial of the petition by the trial court, Coleman filed a notice of appeal which was three days late and the Commonwealth filed a motion to dismiss the appeal on this ground. Although the parties thereafter briefed the merits as well as the motion to dismiss, the Virginia Supreme Court granted the Commonwealth’s motion to dismiss Coleman’s appeal. Coleman then filed a petition for a writ of habeas corpus in federal court. Both the district court and the Court of Appeals held that Coleman had procedurally defaulted on the claims raised in state habe-as. The Supreme Court agreed. In so holding, the Supreme Court expressly limited the potential scope of the plain statement rule laid down in Harris, stating: [i]n habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and" }, { "docid": "12284627", "title": "", "text": "States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). A petitioner will prevail where \"a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law\" substantially affected a jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). However, we will grant federal habeas corpus relief only where a violation of a state's evidentiary rule results in the denial of fundamental fairness, and therefore, a violation of due process. Cooper v. Sowders, 837 F.2d 284, 287 (6th Cir.1988). \"The standard in determining whether the admission of prejudicial evidence constitutes a denial of fundamental fairness is whether the evidence is `material in the sense of a crucial, critical highly significant factor.'\" Leverett v. Spears, 877 F.2d 921, 925 (11th Cir.1989) (quoting Redman v. Dugger, 866 F.2d 387, 390 (11th Cir.1989)). Even assuming the state court erred in permitting Dr. Shaler's testimony, this court will grant federal habeas relief only where the error rises to the level of a denial of fundamental fairness. See Wright v. Dallman, 999 F.2d 174, 178 (6th Cir.1993). When reviewing the Kentucky Supreme Court's decision, the magistrate judge acknowledged that the issue of whether the admission of Dr. Shaler's testimony resulted in unfairness to petitioner was \"admittedly a close issue.\" (Report and Recoin-mendation at 30). At the time of the magistrate judge's decision, he did not have the benefit of the Sixth Circuit's in terpretation of the AEDPA’s standard governing review of habeas claims. Applying this standard, we cannot conclude that the Kentucky Supreme Court’s decision that petitioner was not denied a fundamentally fair trial was “so arbitrary” as to be outside the range of “plausible outcomes.” The Supreme Court of Kentucky twice confronted the issue of the admissibility of Dr. Shaler’s testimony. On direct review in 1982, the Kentucky Supreme Court found, “the only valid argument to be made against the Shaler evidence is addressable to its credibility rather than its admissibility.” 639 S.W.2d at 760. In discussing the evidence, the court noted that the evidence, without Dr. Shaler’s" }, { "docid": "14639977", "title": "", "text": "persons was not materially different from the evidence presented. Cf. Tucker v. Kemp, 762 F.2d 1480, 1486-87 (11th Cir.1985) (en banc), vacated, - U.S. -, 106 S.Ct. 517, 88 L.Ed.2d 452 (1986). Certainly, this statement was not so egregious as to render High’s trial fundamentally unfair. High also argues that this statement constitutes an improper attempt to use his involvement in other crimes as evidence of guilt with regard to the offense charged. First, such an argument presents a question of Georgia evidentiary rules and cannot form a basis for relief in a federal habeas petition. Second, evidence of other crimes would have been harmless error with regard to the guilt phase in light of the overwhelming evidence against High. Third, evidence of other murders committed by High certainly would have been admissible during the sentencing phase. We agree with the district court that the remaining prosecutorial arguments to which High objects did not render the trial fundamentally unfair. Accordingly, the decision of the district court granting High’s petition for a writ of habeas corpus is REVERSED and REMANDED. . Justice Powell, concurring in Griffith, expressed his view that Supreme Court decisions should be applied retroactively in all criminal prosecutions \"with respect to cases pending at the time on direct appeal and with respect to cases pending on habeas corpus petitions.\" Griffith v. Kentucky, - U.S. -, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (Powell, I., concurring). Specifically Justice Powell wrote: As the cases we decided today involve only the retroactivity of decisions pending on direct review, it was not necessary for the court to express an opinion with respect to habeas corpus petitions. As I read the court's opinion, this question is carefully left open until it is squarely presented. Id. at 716. Until such time as the Supreme Court may reexamine its opinion in Allen v. Hardy, we are bound by the Court's holding that Batson is not to be applied retroactively to pending federal habeas petitions. We read the majority decision in Griffith as leaving undisturbed the holding of Allen v. Hardy. The Supreme Court specifically" }, { "docid": "21770663", "title": "", "text": "a habeas petitioner who fails to raise an issue that could have been raised on direct appeal defaults the issue unless the petitioner can show cause and prejudice, or show that a denial of habeas relief would result in \"a miscarriage of justice,\" Head v. Carr, 273 Ga. 613, 544 S.E.2d 409, 412 (Ga.2001) (citing O.C.G.A. § 9 — 14—48(d)). Therefore Dorsey’s Confrontation and Due Process Clause claims are probably procedurally defaulted. ”[W]hen it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, we ... treat those claims now barred by state law as [procedurally defaulted with] no basis for federal habeas relief.” Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir.1998) (citing Harris v. Reed, 489 U.S. 255, 269, 109 S.Ct. 1038, 1046-47, 103 L.Ed.2d 308 (1989) (O’Connor, J., concurring)). Because of the State's explicit waiver of exhaustion in the district court, we do not reach this issue. .As noted previously, Dorsey's due process argument was presented in his motion in li-mine to exclude Hardee’s dissociative testimony. Dorsey’s colorable Confrontation Clause argument was made at trial by his objection to the testimony as a violation of his \"right to cross-examine,” discussed below. (R.6-19 Resp. Ex. 14 at 886.) . For this reason we also reject Dorsey’s claim that the prosecutor's control of the witness rendered the proceeding fundamentally unfair in violation of the Due Process Clause. . Dorsey argues that the state habeas court erred in denying his request to supplement the state habeas record following close of evidence in the evidentiary hearing. However, federal habeas relief does not include the review of state court application of state procedural rules that do not rise to the level of constitutional violations. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991). .The text of § 2254(e)(2): \"If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that(A) the claim" }, { "docid": "11888575", "title": "", "text": "THORNBERRY, Circuit Judge: Appellant Montos seeks review of an order of the district court denying his petition for a writ of habeas corpus, after an evidentiary hearing where he was represented by court-appointed counsel. To exhaust his state post-conviction remedies, Montos filed a petition for habeas corpus in the City Court of Reidsville, Georgia, which denied relief. Prior to the date on which appellant filed his federal habeas petition, the State of Georgia enacted its new Habeas Corpus Act, Georgia Code § 50-127, effective July 1, 1967. That statute provides that the “superior courts” of the county of confinement shall have “exclusive jurisdiction” of habeas corpus actions. Appellant therefore has failed to exhaust available state post-conviction remedies. Reardon v. Smith, 5th Cir. 1968, 403 F.2d 773 [November 14, 1968]. In several cases where state prisoners seeking federal habeas relief have failed to exhaust state remedies, this Court has affirmed the denial of relief, but without prejudice to the merits of the claims, thereby in effect remanding the matters for initial state court action. Undeveloped factual issues precluded immediate determination of the merits in the absence of an evidentiary hearing which “should be had ordinarily in those state courts where a fully effective, practicable procedure is available under state law.” Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731, 735. The district court in this case, however, con ducted an evidentiary hearing and there are no factual issues requiring further development. In these circumstances, the principles of comity, justice, and judicial efficiency underlying the exhaustion doctrine, see Peters v. Rutledge, supra, 397 F.2d at 738, do not call for remand to the state courts. Accordingly, we decide appellant’s claim on its merits. Having studied the briefs and record, we are convinced that the judgment of the court below is correct and that summary disposition of the appeal without oral argument is appropriate. Accordingly, the Clerk of this Court has been directed, pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, to transfer this ease to the summary calendar and notify the" }, { "docid": "6433082", "title": "", "text": "should not be taken if there is a reasonable possibility that an exception to the procedural bar may still be available to the petitioner. Richardson v. Turner, 716 F.2d 1059 (4th Cir.1983). As mentioned, we believe the district court properly concluded that no reasonable possibility exists for Snowden, in state court, to raise (as federal constitutional issues) those issues which he failed to raise throughout his direct appeal and in his first state post-conviction petition. But, about the issues of jury voir dire, destruction of evidence, improper expert testimony about credibility, and ineffective assistance of counsel, we see properly exhausted claims. Because all issues presented are either properly before the federal courts or, in the light of state procedures, now barred from our consideration, we can and will address Snowden’s petition partly on the merits. II. The Merits of the Petition We need go no further than to address the claimed error of permitting an expert witness to testify about the credibility of other witnesses. When reviewing a state court evidentiary ruling, generally federal courts “are not empowered to correct erroneous evidence rulings of state trial courts.” Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (citations omitted). “Nevertheless, when a state trial court’s evidence rulings deny a habeas petitioner fundamental constitutional protections, this [e]ourt’s duty requires it to enforce the constitution’s guarantees by granting the petition for a writ of habeas corpus.” Id. at 1544. Before relief can be granted the error “must rise to the level of a denial of fundamental fairness.” Hall v. Wainwright, 733 F.2d 766, 770 (11th Cir.1984) (quotations and citations omitted). Such fundamental unfairness violates the Due Process Clause of the Federal Constitution. Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.1976). A denial of fundamental fairness occurs whenever the improper evidence “is material in the sense of a crucial, critical, highly significant factor.” Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir.1983). The evidence at issue in this petition is testimony by an expert witness (Dr. Miranda) that 99.5% of children tell the truth and that the expert, in his own experience" }, { "docid": "4648864", "title": "", "text": "and due process claims were “pervasive” throughout his state court arguments. However, “[g]eneral allegations of the denial of rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims that specific constitutional rights were violated.” Id. Furthermore, state procedural rules now prohibit Pudelski from attempting to raise his federal arguments before the state courts, as he has already taken his direct appeal and the time for either moving to reopen the appeal or for filing a state habeas corpus petition has expired. See Ohio Rule of Appellate Procedure 26(B); Ohio Rev. Code § 2953.21(A)(1)(a). Pudelski’s claims, while technically exhausted, would thus appear to be procedurally defaulted. However, exhaustion and procedural default are not jurisdictional limitations, see Cain v. Redman, 947 F.2d 817, 820 (6th Cir.1991), and in this instance we elect to excuse the apparent default. Although the State argued procedural default to the district court and magistrate judge, the State did not renew this issue on appeal and the parties have not briefed it. Based on the record before us we decline to decide the issue and decline to dismiss Pudelski’s petition for procedural default, especially because we find that the district court’s opinion dismissing Pudelski’s petition can be affirmed on the merits. See, e.g., Linscott v. Rose, 436 F.3d 587, 592 (6th Cir.2006). III. The magistrate judge and district court both found that habeas relief was not available to Pudelski on his first ground for relief for the reason that federal habeas relief is not available to remedy alleged errors in state post-conviction proceedings. We hold, however, that motions for new trial filed before a state defendant initiates his or her state direct appeal, and subsequently reviewed during that direct appeal, are not post-conviction proceedings and do not preclude a federal habeas court from reviewing the denial of the motion for new trial for constitutional error. However, on the merits, we find that Pudelski was not denied due process or a fundamentally fair trial when his motion for new trial was denied. Additionally, we find that Pudelski’s second ground for relief is meritless, as the state" }, { "docid": "22752494", "title": "", "text": "law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir.1996) (“Because the petitioner ‘did not apprise the state court of his claim that the evidentiary ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment,’ his federal claim was unex-hausted.” (citation omitted)). V In sum, we hold that the AEDPA limits the scope of our review to the issues specified in the COA. We reject Hiivala’s request to expand those issues to broaden the scope of this appeal, because the issues he wants to add fail to satisfy the requirements for federal habeas review. In resolving the issues specified in the COA, we hold that Hiivala failed to demonstrate cause for his procedural default in failing to file a timely personal restraint petition, and his insufficiency of the evidence claim is procedurally barred because he failed to exhaust it by fairly presenting it as a federal claim to the Washington Supreme Court. AFFIRMED. . Through counsel and in his pro se brief, Hiivala argued: (1) his right to counsel was violated when Maring was housed in Hiivala's cell to gather information about the murder; (2) the police employed improper investigative techniques that violated fundamental fairness; (3) the trial court erred in joining the charges for trial; (4) the trial court abused its discretion in denying his motion for a directed verdict because the State failed to present sufficient evidence to prove first-degree murder; (5) the trial court erred in assuming jurisdiction; and (6) his sentence was excessive. . Prior to the enactment of the AEDPA, § 2253 read as follows: In a habeas corpus proceeding before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had. There shall be no right of appeal from such an order in a proceeding to test the validity of a warrant to" }, { "docid": "7829067", "title": "", "text": "had a gun at the time of the killing, the police were unable to find the alleged gun in Ray’s truck. For these reasons, the admission of Giles’ testimony does not justify habeas corpus relief. Shaw’s second evidentiary challenge is similarly unavailing. He alleges that it was prejudicial error for the state trial court to exclude a copy of Ray’s conviction, nine months before his death, of obstructing a police officer near Shaw’s farm. Applying the analysis set forth above, we will assume arguendo that the exclusion was erroneous. Nevertheless, the error again failed to render the trial fundamentally unfair. Ample testimony was admitted concerning Ray’s conduct. A blow-by-blow account of the events leading to Ray’s guilty plea also was admitted. The only thing excluded was a copy of the final adjudication. The remaining issues Shaw raises do not merit extended discussion. His allegations of misconduct on the part of the prosecutor, some of the jurors and the bailiff do not justify granting a writ of habeas corpus. Similarly, the failure of the Chief Justice of the Georgia Supreme Court to attend oral argument of Shaw’s direct appeal, the denial of which he participated in, does not rise to the level of a constitutional violation which would support habeas relief. The district court’s order denying the writ addresses each of these arguments in much greater detail, and properly disposes of them. The judgment of the district court is AFFIRMED without prejudice to any Sixth Amendment Confrontation Clause claim petitioner may hereafter present. . We note that Shaw never presented this due process claim to a state court and thus never exhausted it. We have not bpen provided with the briefs on Shaw’s direct appeal to the Georgia Supreme Court. See Federal Habeas Rule 5. It is patent from the Georgia Supreme Court’s opinion, however, that no due process claim was presented to that court. Nevertheless, the state has not raised Shaw’s failure to exhaust this claim. Thus, we decide it. See Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1982). . Two state supreme court judges dissented without" } ]

[ { "docid": "16489164", "title": "", "text": "respondent presented his mitigating evidence, the parties made closing arguments discussing respondent’s mitigating evidence and how the jury should consider it. Respondent was also allowed to provide his own statement. The trial judge included in his instructions the disputed factor (k) language, an instruction that has since been amended, see Cal. Jury Instr., Crim., No. 8.85(k) (2005). II In two earlier cases this Court considered a constitutional challenge to the factor (k) instruction. See Brown v. Pay-ton, supra; Boyde v. California, 494 U. S. 370 (1990). In Boyde, the Court rejected a claim that factor (k), with its focus on circumstances “ 'extenuating] the gravity of the crime,’” precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant’s background and character. Id., at 377-378, 386. The “proper inquiry,” the Court explained, “is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id., at 380. Since the defendant in Boyde “had an opportunity through factor (k) to argue that his background and character ‘extenuated’ or ‘excused’ the seriousness of the crime,” the Court saw “no reason to believe that reasonable jurors would resist the view, ‘long held by society,’ that in an appropriate case such evidence would counsel imposition of a sentence less than death.” Id., at 382 (citing Penry v. Lynaugh, 492 U. S. 302, 319 (1989)). During the sentencing phase in Boyde, moreover, the defense had presented extensive evidence regarding background and character, so construing factor (k) to preclude consideration of that evidence would have required the jurors not only to believe that “the court’s instructions transformed all of this ‘favorable testimony into a virtual charade,’ ” 494 U. S., at 383 (quoting California v. Brown, 479 U. S. 538, 542 (1987)), but also to disregard another instruction requiring the jury to “ ‘consider all of the evidence which has been received during any part of the trial of this case,”’ 494 U. S., at 383. In Payton, the Court again evaluated arguments that factor (k) barred consideration" } ]

[ { "docid": "22150936", "title": "", "text": "be allowed to consider evidence that is proffered as mitigating ... [t]here is no constitutional requirement that the jury find a mitigating factor”). Thus, “[t]here is only a constitutional violation if there exists a reasonable likelihood that the jurors believed themselves precluded from considering relevant mitigating evidence.” Id. See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (setting forth “reasonable likelihood” test). A jury need only “be able to consider in some manner all of a defendant’s relevant mitigating evidence,” and need not “be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.” Johnson v. Texas, 509 U.S. 350, 372, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). The government’s capital sentencing procedures “may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). Basham contends that, although the district court’s oral jury instruction may have properly informed the jurors that they could consider any “other factors” in mitigation, the absence of such a mitigator from the special verdict form created a reasonable likelihood that jurors, in fact, believed they were precluded from considering “other factors” in mitigation. We disagree. In Jones v. United States, 527 U.S. 373, 393, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the Court rejected a similar argument, concluding that a district court’s “explicit instruction” could overcome any ambiguity or confusion caused by a verdict form. Likewise, in this case the district court explicitly instructed that “other factors” (J.A. at 2751) could be considered as a statutory miti-gator, and even summarized its mitigation instruction to reiterate that “any mitigating factors,” even those unmentioned by the parties or absent from the special verdict form, could be considered by a juror. (J.A. at 2755.) Basham primarily relies upon the Court’s decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In Mills, the state trial judge issued an instruction that," }, { "docid": "13172594", "title": "", "text": "to consider and give effect to “constitutionally relevant mitigating evidence.” See Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (“the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence”); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding the appropriate standard of review is whether there is a reasonable likelihood the challenged jury instructions were applied by the jury in a way that prevented the consideration of constitutionally relevant mitigating evidence); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (holding the same). However, the Supreme Court has never declared information regarding state parole eligibility laws constitutes “mitigating evidence.” The defendant in Simmons argued his ineligibility for release on parole was a relevant consideration with regard to the propriety of his sentence because the evidence showed all of his victims had been elderly women and he was unlikely to encounter such persons if he were sentenced to serve a term of life imprisonment. Petitioner’s situation is significantly different. A review of pertinent Supreme Court case law reveals the Supreme Court has consistently employed the term “constitutionally relevant mitigating evidence” to describe evidence which tends to diminish a convicted capital murderer’s moral blameworthiness or lessen the reprehensible nature of the offense, i.e., evidence which relates to the defendant’s background or character or to the circumstances of the offense. See, e.g., Tennard v. Dretke, 542 U.S. 274, 285-87, 124 S.Ct. 2562, 2571-72, 159 L.Ed.2d 384 (2004) (holding impaired intellectual functioning is inherently mitigating); Penry v. Johnson, 532 U.S. 782, 796-97, 121 S.Ct. 1910, 1920, 150 L.Ed.2d 9 (2001) (holding jury instructions in a Texas capital sentencing proceeding did not adequately afford the jury a means of giving effect to mitigating evidence of the defendant’s mental retardation and history of childhood abuse); Buchanan v. Angelone, 522 U.S. at 278-79, 118 S.Ct. at 762-63 (holding jury instructions in a Virginia capital sentencing proceeding adequately permitted consideration of mitigating evidence of the defendant’s difficult family background" }, { "docid": "23215217", "title": "", "text": ". Mason notes that Potts drove him from his home to the Sheriffs Office in an unmarked police car with doors that could not be unlocked by passengers. . Alternate juror Mary Beckholt testified to jurors’ comments during the trial that \"all black people did was drink and party and do beer runs.” J.A. at 1384. . Mason apparently wears a \"dew rag” or bandana on a daily basis. J.A. at 773. Juror Kathy Haney testified that a juror made \"racist remarks and [talked] in a jive manner” about \"dew rags,” as well as ridiculed Mason’s speech. J.A. at 1412-13. Juror Jason Mahaffey (\"Mahaffey”) testified that the same juror had \"said he had to go get his dew rag, cause he doesn't have a hat; he just has a dew rag.” J.A. at 1407-08. However, Ma-haffey did not characterize the comment as \"racial.” J.A. at 1407. .The prosecutor and defense counsel obtained these affidavits without consulting the trial court. The joint appendix contains the affidavits of ten jurors who denied participating in or observing any racism. . Under Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the standard for reviewing jury instructions from the selection phase of a capital sentencing process is “whether there is a reasonable lilcelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’’ Id. at 276, 118 S.Ct. 757 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). The Supreme Court has thus held that the Eighth and Fourteenth Amendments do not require a trial court to give a specific instruction on mitigating evidence, much less define what it means. Id. at 277, 118 S.Ct. 757 (holding that a jury instruction to base the decision on \"all the evidence” was constitutionally sufficient because it \"afforded jurors an opportunity to consider mitigating evidence”). The only constitutional requirement is that the instructions do not preclude a capital jury from considering mitigating evidence. Id. at 276, 118 S.Ct. 757; see also Weeks v. Ange-lone, 528 U.S. 225, 232," }, { "docid": "13172673", "title": "", "text": "of justice exception to the procedural default doctrine. Therefore, petitioner cannot overcome his state procedural default on this claim and federal habeas review of same is precluded. D. AEDPA Analysis The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment-phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this .standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400," }, { "docid": "23215218", "title": "", "text": "racism. . Under Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the standard for reviewing jury instructions from the selection phase of a capital sentencing process is “whether there is a reasonable lilcelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’’ Id. at 276, 118 S.Ct. 757 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). The Supreme Court has thus held that the Eighth and Fourteenth Amendments do not require a trial court to give a specific instruction on mitigating evidence, much less define what it means. Id. at 277, 118 S.Ct. 757 (holding that a jury instruction to base the decision on \"all the evidence” was constitutionally sufficient because it \"afforded jurors an opportunity to consider mitigating evidence”). The only constitutional requirement is that the instructions do not preclude a capital jury from considering mitigating evidence. Id. at 276, 118 S.Ct. 757; see also Weeks v. Ange-lone, 528 U.S. 225, 232, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). We note that the instruction challenged in this case complied with the Buchanan mandate that a trial court should not restrict a jury's consideration of mitigating evidence. However, Buchanan is not controlling because it was decided three and a half years after Mason’s conviction, and, under AEDPA, Supreme Court precedent must be in existence prior to a conviction to control a habeas court’s analysis. See Williams, 260 F.3d at 703. . In Lowenfield, the jury requested additional instructions after it became unable to reach a decision on the second day of deliberations. 484 U.S. at 234, 108 S.Ct. 546. The trial court then asked the individual jurors to answer in writing whether \"further deliberations would be helpful in obtaining a verdict.” Id. Eight jurors responded in the affirmative. Id. After denying a defense motion for a mistrial, the trial court directed the jury to return to the courtroom for further instructions. Id. At this time, the jury gave the trial court a new note that stated that some" }, { "docid": "21706380", "title": "", "text": "complaints about the allegedly narrow definition of “mitigating evidence” contained in the Texas capital sentencing scheme constitutes a procedural barrier to federal habeas review of same. D. Teague Foreclosure No federal court has held the Texas capital sentencing scheme’s definition of “mitigating evidence” deprives a criminal defendant of any right recognized by the United States Constitution. Scheanette v. Quarterman, 482 F.3d 815, 826-27 (5th Cir.2007); Beazley v. Johnson, 242 F.3d 248, 259-60 (5th Cir.), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001). Thus, the non-retroactivity principle announced in Teague v. Lane precludes this Court from adopting the “new rule” advocated by petitioner in his thirtieth claim in this federal habeas corpus proceeding. E.AEDPA Review The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the" }, { "docid": "1843063", "title": "", "text": "v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993)(holding its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted five different classifications of murder for that purpose); Woods v. Johnson, 75 F.3d at 1033-34 (recognizing the constitutionally narrowing function is performed in Texas at the guilt-innocence phase of a capital murder trial). At the selection phase, a sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Buchanan v. Angelone, 522 U.S. at 276, 118 S.Ct. at 761. However, as explained in Buchanan, the Supreme Court has never held that granting capital sentencing juries complete discretion at the selection phase violates the Eighth Amendment. Buchanan v. Angelone, 522 U.S. at 276, 118 S.Ct. at 761-62. On the contrary, the Supreme Court’s opinion in Tuilaepa strongly suggests the opposite is actually the case. Tuilaepa v. California, 512 U.S. at 978-79, 114 S.Ct. at 2638-39 (suggesting the Eighth Amendment permits granting capital sentencing juries “unbridled discretion” at the selection phase). The “eligibility” determination discussed in Tuilaepa and Loving occurred at the guilt-innocence phase of petitioner’s capital murder trial. Woods v. Johnson, 75 F.3d at 1033-34. Thus, even assuming the lack of definitions of key terms included in petitioner’s punishment phase jury charge effectively granted petitioner’s jury what amounted to “unfettered discretion” in deciding whether to impose a sentence of death, as petitioner contends herein, that fact did not deprive petitioner of the protection of any federal constitutional right. 3. Punishment Phase Instructions Did Not Preclude Jury’s Consideration of Mitigating Evidence The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The" }, { "docid": "23249172", "title": "", "text": "state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.” Buchanan v. Angelone, — U.S. -, -, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998). Instead, “the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.... [T]he standard for determining whether jury instructions satisfy these principles [is] ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of relevant evidence.’” Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)). In accordance with these principles, Instruction No. 6 provided: ■ Should you unanimously find that one or more aggravating circumstances existed beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death. If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existed, you are prohibited from considering the Death Penalty. In that event, the sentence must be Imprisonment for Life. R. at 174 (emphasis added). We hold that Instruction No. 6 adequately afforded the jury an opportunity to consider mitigating evidence. The trial court did not instruct the jury that they must assess death if they found the aggravating circumstances outweighed the mitigating circumstances. Instead, the trial court instructed the jury that they were “authorized to consider imposing a sentence of death” upon the finding of an aggravating circumstance. Because the instruction' did not prevent consideration of mitigating circumstances, and because no juror would have understood it to do so, the instruction is constitutionally permissible. See Buchanan, — U.S. at -, 118 S.Ct. at 761 (approving instruction stating that when an aggravating circumstance is present beyond a reasonable doubt, “then you may fix the punishment at death.”) (emphasis added). Mr. Duvall’s reliance on Moore v. Kemp, 809 F.2d 702 (11th Cir.1987) is misplaced. In Kemp, like this case, the jury instructions stated that the jury “would be authorized to consider” the death penalty upon finding" }, { "docid": "5253856", "title": "", "text": "instruction, the instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). In Boyde, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316, the Supreme Court fleshed out these principles, holding that the proper inquiry in cases where a capital sentencing instruction allegedly prevents the consideration of mitigating evidence is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 380. Applying this rule to the petitioner’s case in Boyde, the Supreme Court concluded that there was not a reasonable likelihood that the challenged instruction prevented the consideration of mitigating evidence, in light of the fact that the instruction told the jury that “you shall” consider “[a]ny other circumstance which extenuates the gravity of the crime” and that the jury was presented with four days of evidence at the penalty phase relating to Boyde’s background and character. Id. at 381; see id. at 381-84. Applying the Boyde inquiry in Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the Supreme Court upheld the constitutionality of the Virginia pattern capital sentencing instruction, the very instruction at issue in this case, against a challenge on Eighth and Fourteenth Amendment grounds. The Supreme Court first noted that “the sen-tencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. However, the State may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.” Buchanan, 118 S.Ct. at 761 (internal citations omitted). The Court further held, in pertinent part: The instruction did not foreclose the jury’s consideration of any mitigating evidence. By directing the jury to base its decision on “all the evidence,” the instruction afforded jurors an opportunity to consider mitigating evidence. The instruction informed the jurors that if they found the aggravating factor proved beyond a" }, { "docid": "23223038", "title": "", "text": "outweigh the mitigating circumstances. See Burrows v. State, 640 P.2d 633, 544 (Okla.Crim.App.1982). Nonetheless, the Constitution does not demand “that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.” Buchanan v. Angelone, [522 U.S. 269, -,] 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998). Instead, “the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.... [T]he standard for determining whether jury instructions satisfy these principles [is] hvhether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of relevant evidence.’ ” Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)). In accordance with these principles, Instruction No. 6 provided: Should you unanimously find that one or more aggravating circumstances existed beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death. If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existed, you are prohibited from considering the Death Penalty. In that event, the sentence must be Imprisonment for Life. We hold that Instruction No. 6 adequately afforded the jury an opportunity to consider mitigating evidence. The trial court did not instruct the jury that they must assess death if they found the aggravating circumstances outweighed the mitigating circumstances. Instead, the trial court instructed the jury that they were “authorized to consider imposing a sentence of death” upon the finding of an aggravating circumstance. Because the instruction did not prevent consideration of mitigating circumstances, and because no juror would have understood it to do so, the instruction is constitutionally permissible. See Buchanan, [522 U.S. 269 at -,] 118 S.Ct. at 761 (approving instruction stating that when an aggravating circumstance is present beyond a reasonable doubt, “then you may fix the punishment at death.”) (emphasis added). ... We are confident that “the instruction adequately apprised the jury of its option not to recommend the death" }, { "docid": "83959", "title": "", "text": "F.3d 577, 587 (5th Cir.2002), cert. denied, 537 U.S. 1084, 123 S.Ct. 690, 154 L.Ed.2d 586 (2002); Ross v. Etelle, 694 F.2d 1008, 1012 (5th Cir.1983). The constitutional standard for evaluating the efficacy of punishment-phase jury instructions and special issues is well-settled: “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Abdul-Kabir v. Quarterman, — U.S. -, -, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007); Ayers v. Belmontes, — U.S.-,-, 127 S.Ct. 469, 474, 166 L.Ed.2d 334 (2006); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). “Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.” Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. In evaluating the instructions, courts do not engage in a technical parsing of the relevant lan guage but instead approach the instructions the same way the jury would — with a “commonsense understanding of the instructions in the light of all that has taken place at the trial.” Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198. Because petitioner presented the state habeas court (and presents this Court) with no fact-specific allegations or evidence identifying any specific mitigating evidence which he claims his capital sentencing jury was unable to adequately consider, his fifteenth claim herein amounts to little more than a facial attack on the validity of the Texas capital sentencing scheme. However, even before the Texas Legislature amended the Texas capital sentencing scheme to direct capital sentencing juries to consider all of the evidence before it relating to a defendant’s offense, character and background, and personal moral" }, { "docid": "13172672", "title": "", "text": "of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner’s state trial and habeas corpus proceedings. XIII. Narrow Statutory Definition of “Mitigating Evidence” A. The Claim Petitioner argues Texas’ statutory definition of “mitigating evidence” is unconstitutionally narrow on its face because it is limited to evidence which reduces a defendant’s moral blameworthiness or death worthiness. B. State Court Disposition The state habeas court concluded: (1) petitioner proeedurally defaulted on this complaint by failing to timely object to the definition used in his punishment-phase jury charge; (2) the argument had no merit; and (3) petitioner’s punishment-phase jury instructions did not unconstitutionally limit the jury’s ability to consider any mitigating evidence properly before it during the punishment-phase of petitioner’s trial. C. Procedural Default Petitioner does not allege any specific facts establishing his trial counsel’s failure to timely object to the statutory definition of “mitigating evidence” contained in petitioner’s punishment-phase jury charge constituted ineffective assistance. Likewise, petitioner has alleged no specific facts sufficient to satisfy the fundamental miscarriage of justice exception to the procedural default doctrine. Therefore, petitioner cannot overcome his state procedural default on this claim and federal habeas review of same is precluded. D. AEDPA Analysis The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment-phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this .standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9," }, { "docid": "23249176", "title": "", "text": "ñnd a mitigating circumstance unanimously before each juror could consider the mitigating circumstance in determining whether to impose the death penalty. In McKoy and Mills, the Supreme Court held that a unanimity requirement concerning mitigating circumstances resulted in an unconstitutional death sentence. McKoy, 494 U.S. at 444, 110 S.Ct. at 1234; Mills, 486 U.S. at 375, 108 S.Ct. at 1865-66. In both cases, the Court reasoned that allowing a holdout juror to prevent the other jurors from considering mitigating evidence violated the principle established in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), ie., that a sentencer may not be precluded from giving effect to all mitigating evidence. McKoy, 494 U.S. at 438, 110 S.Ct. at 1231; Mills, 486 U.S. at 375, 108 S.Ct. at 1865-66. A trial court need not, however, expressly instruct a capital sentencing jury that unanimity is not required before each juror can consider a particular mitigating circumstance. See Buchanan v. Angelone, — U.S. -, -, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (“[T]he State may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.”). Instead, as noted above, our standard for determining whether jury instructions violate the constitution is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990), quoted in Buchanan, — U.S. at -, 118 S.Ct. at 761; accord Davis v. Executive Dir. of Dept. of Corrections, 100 F.3d 750, 775 (1996) (10th Cir.1996). In pertinent part, the trial court in this ease gave the following instructions relevant to the mitigating and aggravating circumstances: Instruction No. 6 Should you unanimously find that one or more aggravating circumstances existed beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death. If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances" }, { "docid": "83958", "title": "", "text": "the Texas capital sentencing scheme (particularly the mitigation special issue) permits a capital sentencing jury to adequately consider all circumstances relevant to a petitioner’s offense, character and background, and personal moral culpability. The Texas Court of Criminal Appeals adopted the state habeas trial court’s findings and conclusions. Ex parte Moore, App. No. 40,046-02 (Tex. Crim.App. May 14, 2003). C. AEDPA Review The fundamental analytical problem with this claim is the fact petitioner has consistently failed to allege any specific facts showing precisely how the Texas capital sentencing scheme either permits the imposition of the death penalty in a discriminatory manner or “fails to give effect to the individual circumstances.” Petitioner also alleges no specific facts identifying any potentially mitigating evidence admitted during his second capital trial which he claims his capital sentencing jury was unable to adequately consider. Conclusory assertions do not raise a constitutional issue in a habeas proceeding. Murphy v. Dretke, 416 F.3d 427, 437 (5th Cir.2005), cert. denied, 546 U.S. 1098, 126 S.Ct. 1028, 163 L.Ed.2d 868 (2006); Collier v. Cockrell, 300 F.3d 577, 587 (5th Cir.2002), cert. denied, 537 U.S. 1084, 123 S.Ct. 690, 154 L.Ed.2d 586 (2002); Ross v. Etelle, 694 F.2d 1008, 1012 (5th Cir.1983). The constitutional standard for evaluating the efficacy of punishment-phase jury instructions and special issues is well-settled: “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Abdul-Kabir v. Quarterman, — U.S. -, -, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007); Ayers v. Belmontes, — U.S.-,-, 127 S.Ct. 469, 474, 166 L.Ed.2d 334 (2006); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). “Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.” Johnson v. Texas, 509 U.S. at 367, 113" }, { "docid": "13172593", "title": "", "text": "the time of petitioner’s offense and trial) from those to which its holding in Simmons applied, and (2) has consistently continued to adhere to the same distinction in its subsequent opinions addressing the Fourteenth Amendment’s Due Process Clause. See Simmons v. South Carolina, 512 U.S. at 168-69 & n. 8, 114 S.Ct. at 2196 & n. 8, (plurality opinion specifically explaining that, as of that date, Texas courts traditionally kept capital sentencing juries unaware of the availability of parole for those sentenced to serve terms of life imprisonment). Moreover, unlike the defendant in Simmons, petitioner’s jury was given accurate information regarding parole eligibility for those sentenced to death and those convicted capital murderers who are sentenced to serve a life sentence. This aspect of petitioner’s ineffective assistance claim is also premised on petitioner’s argument suggesting the Eighth Amendment requires capital murder de fendants be permitted to invite their sentencing juries to speculate on parole when deliberating over capital sentencing special issues. The Supreme Court has held the Eighth Amendment requires capital sentencing juries be permitted to consider and give effect to “constitutionally relevant mitigating evidence.” See Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (“the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence”); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding the appropriate standard of review is whether there is a reasonable likelihood the challenged jury instructions were applied by the jury in a way that prevented the consideration of constitutionally relevant mitigating evidence); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (holding the same). However, the Supreme Court has never declared information regarding state parole eligibility laws constitutes “mitigating evidence.” The defendant in Simmons argued his ineligibility for release on parole was a relevant consideration with regard to the propriety of his sentence because the evidence showed all of his victims had been elderly women and he was unlikely to encounter such persons if he were sentenced" }, { "docid": "13172674", "title": "", "text": "144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.’ ” Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669 (quoting Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198). At the time of petitioner’s trial, Section 2(f)(4) of Article 37.071 of the Texas Code of Criminal Procedure directed the trial court to instruct a capital sentencing jury in connection with the final capital sentencing special issue, i.e., the “mitigation” special issue, it “shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” In conformity with this statutory directive, petitioner’s trial court instructed petitioner’s jury as follows: You are instructed that, in answering this second question, you shall consider “mitigating evidence” to be evidence that a juror might" }, { "docid": "21706381", "title": "", "text": "380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. 2658 Boyde v. California, 494 U.S. at 380, 110 S.Ct. 1190. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.’ ” Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. 2658; Boyde v. California, 494 U.S. at 381, 110 S.Ct. 1190. Petitioner’s arguments in support of this claim misconstrue the appropriate constitutional standard for evaluating the propriety of jury instructions at the punishment" }, { "docid": "1843064", "title": "", "text": "S.Ct. at 2638-39 (suggesting the Eighth Amendment permits granting capital sentencing juries “unbridled discretion” at the selection phase). The “eligibility” determination discussed in Tuilaepa and Loving occurred at the guilt-innocence phase of petitioner’s capital murder trial. Woods v. Johnson, 75 F.3d at 1033-34. Thus, even assuming the lack of definitions of key terms included in petitioner’s punishment phase jury charge effectively granted petitioner’s jury what amounted to “unfettered discretion” in deciding whether to impose a sentence of death, as petitioner contends herein, that fact did not deprive petitioner of the protection of any federal constitutional right. 3. Punishment Phase Instructions Did Not Preclude Jury’s Consideration of Mitigating Evidence The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 n. 9, 119 S.Ct. 2090, 2102-03 n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). The fact the jury instructions might have been erroneous as a matter of state law" }, { "docid": "23223041", "title": "", "text": "the jury instructions did not inform the jury that unanimous agreement upon the existence of a mitigating circumstance is not required before each juror can consider such evidence. Relying primarily on McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), and Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), Mr. Duvall contends that the jury instructions erroneously implied that the jury was required to find a mitigating circumstance unanimously before each juror could consider the mitigating circumstance in determining whether to impose the death penalty. A trial court need not, however, expressly instruct a capital sentencing jury that unanimity is not required before each juror can consider a particular mitigating circumstance. See Buchanan v. Angelone, [522 U.S. 269, -,] 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (“[T]he State may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.”). Instead, as noted above, our standard for determining whether jury instructions violate the constitution is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990), quoted in Buchanan, [522 U.S. at -,] 118 S.Ct. at 761; accord Davis v. Executive Dir. of Dept. of Corrections, 100 F.3d 750, 775 (10th Cir.1996). The instructions [given in this case] consistently require unanimity only on the jury’s finding of aggravating circumstances. Instruction Nos. 6 and 10 require the jury to “unanimously find” aggravating circumstances. In contrast, none of the instructions involving mitigating circumstances impose an express or implied unanimity requirement on the jury’s consideration of mitigating evidence. Instruction Nos. 7, 8, and 10 respectively required the jury to “deter-min[e],” “decide[ ],” and “find” whether mitigating circumstances existed without any reference to unanimity. Although Instruction No. 9 requires the jury to find unanimously that the aggravating circumstances outweigh any mitigating circumstances before imposing the death penalty, the unanimity requirement" }, { "docid": "1843065", "title": "", "text": "Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 n. 9, 119 S.Ct. 2090, 2102-03 n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). The fact the jury instructions might have been erroneous as a matter of state law does not, standing alone, furnish a basis for federal habeas corpus relief. Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2118, 124 L.Ed.2d 306 (1993); Estelle v. McGuire, 502 U.S. 62, 71, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646 (1983). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions," } ]

[ { "docid": "22711326", "title": "", "text": "or innocence.” Lego v. Twomey, supra, at 489. See also United States v. Leon, 468 U. S., at 906-913. B We also think that the Supreme Court of Colorado was mistaken in its analysis of the question whether respondent had waived his Miranda rights in this case. Of course, a waiver must at a minimum be “voluntary” to be effective against an accused. Miranda, supra, at 444, 476; North Carolina v. Butler, supra, at 373. The Supreme Court of Colorado in addressing this question relied on the testimony of the court-appointed psychiatrist to the effect that respondent was not capable of making a “free decision with respect to his constitutional right of silence . . . and his constitutional right to confer with a lawyer before talking to the police.” 702 P. 2d, at 729. We think that the Supreme Court of Colorado erred in importing into this area of constitutional law notions of “free will” that have no place there. There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. See United States v. Washington, 431 U. S. 181, 187 (1977); Miranda, supra, at 460. Indeed, the Fifth Amendment privilege is not concerned “with moral and psychological pressures to confess emanating from sources other than official coercion.” Oregon v. Elstad, 470 U. S. 298, 305 (1985). The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. See Moran v. Burbine, 475 U. S., at 421 (“[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. . . . [T]he record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements”); Fare v. Michael C., 442 U. S. 707, 726-727 (1979) (The defendant was" } ]

[ { "docid": "7769419", "title": "", "text": "We base our determination on the “totality of the circumstances,” Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), construing the facts in the light most favorable to the party prevailing below. United States v. Cure, 996 F.2d 1136, 1138 (11th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1075, 127 L.Ed.2d 393 (1994). Barbour alleges that he was never informed of his Miranda rights. He also contends that even if he were informed of these rights, he did not waive them “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. He claims that given his severe mental depression and medicated state, Agent McKenna’s promise to provide help in obtaining mental health treatment was coercive. The threshold inquiry is whether Barbour was informed of his Miranda rights. See New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984); Miranda, 384 U.S. at 468-70, 86 S.Ct. at 1624-26. The district court found that Barbour was read his Miranda warnings on February 3 and 7. Barbour himself admitted that he signed the “Consent to Search” form on February 4. Because we conclude that the district court’s determination is not clearly erroneous, this threshold inquiry is satisfied. Thus, we turn to Barbour’s claim that his Miranda rights were not waived “voluntarily, knowingly, and intelligently.” In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the Supreme Court explained the two-part inquiry into whether a defendant’s waiver of Miranda rights was voluntary, knowing, and intelligent. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have" }, { "docid": "7500805", "title": "", "text": "1628. The tone and language of the Miranda opinion seemed to indicate that the Supreme Court would be receptive to nothing short of an express waiver of the rights involved. Id. at 475-76, 86 S.Ct. at 1628-29. Although many lower courts took the position that the Miranda waiver of rights did not have to be explicit, see, e.g., United States v. Boston, 508 F.2d 1171 (2d Cir.1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975), this issue was not firmly resolved until the Supreme Court’s decision in Butler. There, defendant was given his Miranda rights orally at the time of arrest and later at the FBI office he was read an Advice of Rights form which he said he understood, after which he said he would talk to FBI agents but would not sign the waiver on the form. 441 U.S. at 370-71, 99 S.Ct. at 1755-56. The North Carolina Supreme Court excluded defendant’s incriminatory statement on the ground that a waiver of Miranda rights “will not be recognized unless such waiver is ‘specifically made’ after the Miranda warnings have been given.” Id. at 372, 99 S.Ct. at 1757. The Supreme Court disagreed, holding that a defendant’s failure to explicitly waive his right to remain silent or his right to counsel, after being advised of his Miranda warnings, did not per se require exclusion of defendant’s statement if a waiver could be found from defendant’s actions and conduct and the surrounding circumstances. Id. at 373-76, 99 S.Ct. at 1757-59. The inquiry into whether a waiver is valid or has been coerced “has two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986) (citing Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981)): First, the relinquishment of the rights must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned" }, { "docid": "23076458", "title": "", "text": "“an essentially free and unconstrained choice” by Barahona. Thus, after careful review of the record, we conclude that the finding of voluntary consent is not clearly erroneous. C. Barahona also seeks the suppression of statements he made after his arrest on the ground they were obtained in violation of his Miranda right to have counsel present during custodial interrogation. He alleges the law enforcement officers used coercive tactics and ignored his repeated requests for counsel during critical periods of his interrogation. Once a suspect invokes his right to have counsel present during a custodial interrogation, all questioning must cease until counsel is present. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). This right is derived from the Fifth Amendment’s privilege against self-incrimination, and may of course be waived. See id. at 474-75, 86 S.Ct. at 1628. The government bears the burden of proving by a preponderance of the evidence that the defendant knowingly and voluntarily waived this right. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); United States v. Dougherty, 810 F.2d 763, 773 (8th Cir.1987). The voluntariness of a waiver depends on the absence of police overreaching, that is, the relinquishment of the right must have been the result of a free and deliberate choice rather than intimidation, coercion, or deception. Connelly, 479 U.S. at 170, 107 S.Ct. at 523; Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986); Fare v. Michael C, 442 U.S. 707, 726-27, 99 S.Ct. 2560, 2572-73, 61 L.Ed.2d 197, reh’g denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979). In determining whether a valid waiver has been made, a trial court must look at the totality of the circumstances in each case, including the background, experience, and conduct of the accused. Dougherty, 810 F.2d at 773; Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985); Fare, 442 U.S. at 724-25, 99 S.Ct. at 2571-72. We review the magistrate judge’s factual" }, { "docid": "23191000", "title": "", "text": "Frank did not request that the interview be terminated. Special Agent Raucci testified that no threats or promises were made to Frank. Frank appeared to be alert and to understand the questions asked of him at all times. The testimony presented by the Government shows that Frank was treated properly by the police before and during the interrogation, and was not subjected to coercion. There is no evidence in the record of police overreaching or oppressive conduct that caused Frank to confess involuntarily. If anything, the record shows the officers where fully respectful of his constitutional rights. In fact, one of the officers told Frank to be quiet when he volunteered during booking that had committed violent acts. The district court did not err in concluding that Frank confessed voluntarily. Frank contends that testimony at the competency hearing presented by the Government established that he was unable to comprehend his Miranda rights. The test we must apply in determining whether a waiver of Miranda rights was knowing and intelligent is set forth in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1985). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Id. at 421, 106 S.Ct. at 1141 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). When considering the totality of the circumstances, relevant factors include “age, experience, education, background and intelli-gence_” Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979). As discussed above, there is no evidence in the record that Frank was intimidated, coerced, or" }, { "docid": "22556399", "title": "", "text": "Consistent with this purpose, a suspect may waive his Fifth Amendment privilege, “provided the waiver is made voluntarily, knowingly and intelligently.” Id., at 444. In this case, the law enforcement officials twice informed Spring of his Fifth Amendment privilege in precisely the manner specified by Miranda. As we have noted, Spring indicated that he understood the enumerated rights and signed a written form expressing his intention to waive his Fifth Amendment privilege. The trial court specifically found that “there was no element of duress or coercion used to induce Spring’s statements [on March 30, 1978].” App. to Pet. for Cert. 3-A. Despite the explicit warnings and the finding by the trial court, Spring argues that his March 30 statement was in effect compelled in violation of his Fifth Amendment privilege because he signed the waiver form without being aware that he would be questioned about the Colorado homicide. Spring’s argument strains the meaning of compulsion past the breaking point. B A statement is not “compelled” within the meaning of the Fifth Amendment if an individual “voluntarily, knowingly and intelligently” waives his constitutional privilege. Miranda v. Arizona, supra, at 444. The inquiry whether a waiver is coerced “has two distinct dimensions.” Moran v. Burbine, 475 U. S. 412, 421 (1986): “First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Ibid, (quoting Fare v. Michael C., 442 U. S. 707, 725 (1979)). There is no doubt that Spring’s decision to waive his Fifth Amendment privilege was voluntary. He alleges no “coer cion of a confession by physical violence or other deliberate means calculated to break [his] will,” Oregon v." }, { "docid": "21431547", "title": "", "text": "The question for our de novo review is whether the totality of these circumstances rendered Yunis’ waiver of rights involuntary and unknowing. We conclude that it did not. In explaining our conclusion, we begin by reviewing the standard for knowing and voluntary waiver of Miranda rights. First, the relinquishment of the right[s] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). In Miranda and its progeny, the Court has made clear that “custodial interrogations, by their very nature, generate ‘compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so.’ ” Moran, 475 U.S. at 420, 106 S.Ct. at 1140 (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624). But the Court has also reminded us that “[t]he sole concern of the Fifth Amendment ... is governmental coercion,” and that “[t]he voluntariness of a waiver of th[e fifth amendment] privilege has always depended on the absence of police overreaching....” Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). The administration of proper Miranda warnings, followed by a written waiver of the rights described in those warnings, will usually go far toward demonstrating that a decision to speak is not compelled. See, e.g., North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). If the written waiver is promptly followed by an actual confession, the likelihood that the waiver was valid is often further enhanced. Cf. Miranda, 384 U.S. at 476, 86 S.Ct. at 1629 (“the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights”)- In addition, as the Supreme Court has" }, { "docid": "21583194", "title": "", "text": "Because of this condition, petitioner argues that he could not have waived his rights voluntarily and intelligently. The Supreme Court has held that the inquiry into whether a defendant has waived his rights under Miranda voluntarily, knowingly and intelligently has two distinct dimensions: First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986); see Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987); Evans v. McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); United States v. McClure, 786 F.2d 1286, 1288-90 (5th Cir.1986). Thus “a valid waiver of Miranda rights must not only be voluntary; it must also be intelligently made.” Miller v. Dugger, 838 F.2d 1530, 1538 (11th Cir.1988) (emphasis in original). Mental illness, moreover, is a factor to be considered by the trial court when ruling on the validity of a waiver. Id. at 1539; see Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir.1972); McClure, 786 F.2d at 1289. Applying Burbine and Miller to the facts of this case, we find that petitioner’s waiver was both voluntary and intelligent. Mental retardation does not by itself prevent a defendant from voluntarily waiving his constitutional rights. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473 (1986). The voluntariness of a Miranda waiver depends on the absence of police overreaching, and not on any broad sense of “free choice.” Id. 107 S.Ct. at 523; see United States v. Scheigert, 809 F.2d 1532, 1533" }, { "docid": "9436945", "title": "", "text": "by reading Rogers the Miranda rights and obtaining a signed waiver. Rogers, who assumed that this was a follow-up to the county investigation, was not given the reason for these steps. The statement he gave was the source of a three-count indictment related to the firearms. This Court’s independent review of the suppression hearing evidence fully confirms the trial court’s findings of fact. We now turn to the proper legal conclusion to be drawn from these facts. The applicable standard for determining whether a confession is voluntary is whether, taking into consideration the “totality of the circumstances,” the statement is the product of the accused’s “free and rational” choice. Martinez v. Estelle, 612 F.2d 173, 177 (5th Cir.1980) (quoting Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77, 79 (1968)). A statement is not “compelled” within the meaning of the Fifth Amendment if an individual “voluntarily, knowing ly and intelligently” waives his constitutional privilege. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The inquiry whether a waiver is coerced “has two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986): First, the relinquishment of the right must have been voluntary in the sense that it was a product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an un-coerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). We are mindful that a valid waiver of constitutional rights does not occur in a vacuum but rather in response to a particular set of facts. United States v. McCrary, 643 F.2d 323, 329 (5th Cir. Unit B 1981). Thus" }, { "docid": "7769420", "title": "", "text": "3 and 7. Barbour himself admitted that he signed the “Consent to Search” form on February 4. Because we conclude that the district court’s determination is not clearly erroneous, this threshold inquiry is satisfied. Thus, we turn to Barbour’s claim that his Miranda rights were not waived “voluntarily, knowingly, and intelligently.” In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the Supreme Court explained the two-part inquiry into whether a defendant’s waiver of Miranda rights was voluntary, knowing, and intelligent. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Id. at 421, 106 S.Ct. at 1141 (quoting Fare, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197) (citations omitted). We begin with the first prong, whether the waiver was made voluntarily. The fact that a defendant suffers a mental disability does not, by itself, render a waiver involuntary; there must be coercion by an official actor. See Colorado v. Connelly, 479 U.S. at 169-70, 107 S.Ct. at 522-23; Coleman v. Singletary, 30 F.3d at 1426; Purvis v. Dugger, 932 F.2d 1413, 1422-23 (11th Cir.1991), cert. denied, 503 U.S. 940, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992). Thus, the fact that Barbour was suffering severe depression does not render his statements involuntary unless the agents took advantage of his mental illness. In this case, the agents did no more than offer to help Barbour obtain medical assistance, which he in fact received. The district court found that the agents’ promise to help Barbour receive mental health treatment was not an assurance that the entire matter would not be treated as a criminal issue." }, { "docid": "10886441", "title": "", "text": "voluntary, but we review the district court’s findings of historical fact for clear error. United States v. Doe, 149 F.3d 634, 639 (7th Cir.1998). The waiver inquiry has two distinct dimensions: waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Berghuis v. Thompkins, - U.S. -, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). Lee was read his Miranda rights and given a Miranda waiver to sign immediately after. Lee took the form and signed next to the “X.” According to Sergeant Gorsuch’s testimony, Lee appeared to read the waiver line after being handed the waiver form. Nothing in that sequence of events suggests that Lee’s act of signing the waiver was involuntary or that he did not understand the rights that were read to him. There is nothing in the record to suggest that Lee did not understand his rights or that he was in some way forced to sign the waiver. Moreover, after being read his Miranda rights, Lee voluntarily answered many of the officers’ questions. Willingness to answer questions, even in the absence of a signed waiver, can be viewed as impliedly waiving one’s rights. United States v. Smith, 218 F.3d 777, 781 (7th Cir.2000) (holding that “a Miranda waiver need not be express. It may be inferred from a defendant’s understanding of her rights coupled with a course of conduct reflecting her desire to give up her right to remain silent”); Berghuis, 130 S.Ct. at 2262. In the present case, not only was Lee read his Miranda rights, but he signed the Miranda waiver voluntarily and continued to cooperate in answering the officers’ questions thereafter. Second, Lee argues that his constitutional rights were violated because his statements made during the custodial interview were coerced. Specifically, Lee alleges that the officers improperly pressured" }, { "docid": "1474312", "title": "", "text": "having lived in Jamaica for several years, and that he helped make sure that Briscoe understood his Constitutional rights by “translating” American English into Jamaican English and visa-versa. Both agents testified that Briscoe signed the advice of rights form only after he acknowledged that he understood the rights that they had read to him. Briscoe took the stand and denied that he signed the form and claimed that he did not understand the rights on the form because he cannot read. Even assuming that the defendant cannot read, the government nevertheless proved that the agents read his rights to him, and that he understood them. 2. Briscoe Waived His Miranda Rights A valid waiver of Miranda rights must be knowing, voluntary, and intelligent. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The inquiry into the validity of a waiver of Miranda rights “has two distinct dimensions.” Colorado v. Spring, 479 U.S. 564, 572, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410, (1986)). The waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and “must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Spring, 479 U.S. at 572, 107 S.Ct. 851 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197, (1979)). The Court must “consider the totality of circumstances surrounding [Briscoe’s] statement and determine if that statement was the result, of a knowing, voluntary, and intelligent waiver of the protections implicit in the Miranda warnings.” United States v. Tyler, 164 F.3d 150, 158 (3d Cir.1998). Such circumstances vary according to the facts of the particular case, including the background, experience, and conduct of the suspect, see Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), as well as any indicia of coercion. In addi tion, the government has the burden of proving the waiver by a preponderance of the evidence. See" }, { "docid": "22194687", "title": "", "text": "if “the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Supreme Court has established a two-part inquiry to determine whether the waiver was freely given: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran, 475 U.S. at 421, 106 S.Ct. at 1141 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). The Government must prove by a preponderance of the evidence that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Glover, 431 F.3d at 748. Villafuerte argues that a number of mistakes or irregularities surrounding his confession indicate that he did not freely and knowingly waive his Miranda rights: Villafuerte did not sign the Miranda waiver form presented to him even though the agents had Cervantes sign his shortly after Villafuerte gave his statement; someone wrote on Villafuerte’s form “Fredy Villafuerte forgot to sign,” but the agents did not know who did that; the times indicated on Villafuerte’s and Cervantes’s forms were inconsistent; and the interrogation was not recorded because the FBI had a policy of not recording interrogations. Villafuerte also points out that during the suppression hearing the Government acknowledged that the agents made a mistake by not having him sign the Miranda waiver. Villafuerte argues it was error for the district court nonetheless to find the statement admissible based on the agents’ unrebutted testimony, claiming that the court was applying a “presump tion of correctness” to the procedure the agents employed in conducting the interrogations and therefore to the agents’ testimony. Villafuerte’s argument falls short." }, { "docid": "22194686", "title": "", "text": "requirements of Miranda ...; if so, we then determine if the confession was voluntary.” United States v. Jones, 32 F.3d 1512, 1516 (11th Cir.1994) (per curiam) (citation omitted). “This Court reviews the denial of a motion to suppress a confession under a mixed standard: findings of fact are reviewed for clear error and the application of law to the facts is reviewed de novo.” United States v. Glover, 431 F.3d 744, 747 (11th Cir.2005) (per curiam). Villafuerte argues both that the Government did not obtain a valid waiver of his Miranda rights and that his confession was coerced. We address these arguments in turn. a. Villafuerte first argues that his post-arrest statement was inadmissible under Miranda v. Arizona. Miranda protects a person’s Fifth Amendment privilege against self-incrimination by requiring law enforcement authorities to advise a person subject to custodial interrogation of certain rights and to respect the person’s invocation of those rights. Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986). A defendant may waive these rights, but only if “the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Supreme Court has established a two-part inquiry to determine whether the waiver was freely given: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran, 475 U.S. at 421, 106 S.Ct. at 1141 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). The Government must prove by a preponderance of the evidence that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Glover, 431" }, { "docid": "23288294", "title": "", "text": "amendment. We, therefore, will not require that the evidence obtained as a result of her detention be suppressed, without consideration of the constitutionality of the Delaware statute. C. We next discuss Velasquez’ claim that the district court erred in denying her mo tion to suppress the statements she made to Agent Glanz while in custody. Velasquez argues that she did not waive the Miranda rights which she had previously invoked and that the statements should not have been admitted. In its landmark decision in Miranda v. Arizona, the Supreme Court imposed certain obligations on police in custodial interrogations, in order to dissipate the “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). Prior to questioning, the police must inform the suspect of his right to remain silent and his right to have counsel present during interrogation, as well as their intent to use his statements to secure a conviction. See id. at 468-70, 86 S.Ct. at 1624-26. They also must cease the interrogation if at any point the suspect indicates that he wishes to remain silent or that he wants an attorney. See id. at 473-74, 86 S.Ct. at 1627-28. Miranda allows the suspect to waive these rights, “provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. at 1612. The inquiry has two components. First, the waiver must have been voluntary “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (citing Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). Second, the waiver “must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. In Edwards v. Arizona, the Supreme Court held that an accused person in custody" }, { "docid": "23602485", "title": "", "text": "statements taken during a custodial interrogation conducted outside the presence of the suspect’s attorney is conditioned on the government’s ability to show “that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. at 475, 86 S.Ct. at 1628. The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)) (citations omitted). Mental illness is one factor to be considered in determining whether a waiver was made knowingly, Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988); a juvenile’s age, experience, education, background, and intelligence are others, Fare, 442 U.S. at 725, 99 S.Ct. at 2572. We review de novo the district court’s determination of the voluntariness of a defendant’s confession. Cannady v. Dugger, 931 F.2d 752, 753-54 (11th Cir.1991). The Supreme Court has held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause.” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). There is no indication in the record that Coleman was coerced. The transcript of Coleman’s interrogation shows the opposite: at no time was he threatened or intimidated, and his interrogators made it clear to him that he could end their discussion at any time." }, { "docid": "9459341", "title": "", "text": "waiver card did not render his waiver of Fifth Amendment rights invalid. Although we agree that Detective Stamper’s statements were less than appropriate, we find the Michigan court’s decision to be an “objectively reasonable” application of clearly established Supreme Court precedent, and, thus, af firm the district court’s denial of petitioner’s request for habeas relief. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that the privilege against self-incrimination protects individuals from “informal compulsion exerted by law-enforcement officers during in-custody questioning.” Id. at 461, 86 S.Ct. 1602. Unless a suspect knowingly, voluntarily, and intelligently waives these rights, a court will exclude statements made as a result of an involuntary waiver. See Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). In determining whether a suspect has validly waived his rights, a trial court should consider the following factors: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the investigation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). “Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of the case, ‘including the background, experience, and conduct of the accused.’ ” See United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir.1990) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). After extensive hearings, the state trial court determined that both Machacek and his legal guardian made the final decision to waive his Miranda" }, { "docid": "23602484", "title": "", "text": "Dictionary 369 (2d ed., J.A. Simpson & E.S.C. Weiner, eds., 1989); and as: “Having two or more significations; capable of more than one interpretation; of doubtful meaning; ambiguous,” Webster’s Third International Unabridged Dictionary 769 (1986). Coleman’s statement is capable of equally plausible, differing interpretations; it is ambiguous; hence, it is equivocal. Because Coleman’s statement was equivocal, his subsequent statements were admissible. It does not matter whether the detectives dropped all questions about the crime until Coleman clarified his intent, because in the wake of the Supreme Court’s decision in Davis, there is no duty to clarify a suspect’s intent after such a statement. The obligation to cease questioning a suspect arises only when the suspect unambiguously invokes the right to remain silent. That did not occur here. B. WHETHER COLEMAN EFFECTIVELY WAIVED HIS MIRANDA RIGHTS Coleman also contends that, because of the conduct of the police, as well as his youth and mental difficulties, his waiver of his Miranda rights was not voluntary and intelligent, and was therefore not effective. Under Miranda, the admission of statements taken during a custodial interrogation conducted outside the presence of the suspect’s attorney is conditioned on the government’s ability to show “that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. at 475, 86 S.Ct. at 1628. The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572," }, { "docid": "15455170", "title": "", "text": "of clearly established federal law. Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015). Miranda v. Arizona holds that the Fifth Amendment guarantees a suspect in custody the right to refuse questioning or to have retained or appointed counsel present during questioning. 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A defendant may waive these rights, but any such waiver must be made “voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. 1602. To determine if a defendant has validly waived his Miranda rights, the trial court must engage in two distinct inquiries: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). “The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation.” Fare, 442 U.S. at 725, 99 S.Ct. 2560. These circumstances include “evaluation of the [suspect’s] age, experience, education, background, and intelligence, and ... whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Id. But mental deficiency alone does not render a Miranda waiver invalid. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Mr. Smith argued on direct appeal that the trial court “failed to properly evaluate the validity of the Miranda waiver under the totality of the circumstances standard” because the trial court “refused to allow a neuropsychologist, Dr. Bianco, to testify" }, { "docid": "15137299", "title": "", "text": "rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); see also Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Moran v. Burbine, the Supreme Court clarified that: The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Moran, 475 U.S. at 421, 106 S.Ct. 1135. The determination of whether a waiver was knowing, intelligent, and voluntary is to be made by assessing the totality of the circumstances. Id.; see also Abela v. Martin, 380 F.3d 915, 928 (6th Cir.2004). To be voluntary, a waiver must be the product of the defendant’s free will, without indicia of untoward government coercion, overreaching, or deception. To be clear, therefore, free will overborne by an impairment of the defendant’s mental state, without the presence of government coercion or overreaching, is insufficient to establish that his waiver was not “voluntary.” See, e.g., Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). To determine whether a waiver was knowing and intelligent, the Court must take into account the particular facts and circumstances surrounding the waiver, including the defendant’s background, experience, conduct, age, and capacity to understand the rights he seeks to waive. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Machacek v. Hofbauer, 213 F.3d 947, 954 (6th Cir.2000). It is" }, { "docid": "11795505", "title": "", "text": "lineups related to other robberies under investigation. “Prior to any questioning, [a suspect] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); see also id. at 467-69, 471, 473, 479, 86 S.Ct. at 1624-25, 1626, 1627, 1630. Once warned, a suspect “may waive effectuation of [Miranda] rights, provided the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. “The inquiry [into the validity of a waiver] has two distinct dimensions.... First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of 'the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both • an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986), quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571, 61 L.Ed.2d 197 (1979). The “totality of the circumstances in each case” may include “the background, experience, and conduct of the [suspect].” United States v. Barahona, 990 F.2d 412, 418 (8th Cir.1993). (According to the presentence report, Mr. Jones has at least 15 years of experience with the criminal justice system, leading to five prior convictions.) Coercion may be found where “the police fail[] to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Michigan v. Mosley," } ]

[ { "docid": "22715004", "title": "", "text": "mea cwlpo’s. occasioned by shifts in assumptions and emphasis. Compare, e. g., United States v. Jenkins, 420 U. S. 358 (1975), with United States v. Scott, 437 U. S. 82 (1978) (overruling Jenkins). See also Burks v. United States, 437 U. S. 1, 9 (1978) (Our holdings on this subject “can hardly be characterized as models of consistency and clarity”). Although today’s decision takes a tentative step toward recognizing what I believe to be the proper role for this Court in determining the permissibility of multiple punishments, it ultimately compounds the confusion that has plagued us in the double jeopardy area. I In recent years we have stated in the manner of “black letter law” that the Double Jeopardy Clause serves three primary purposes. First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969); Brown v. Ohio, 432 U. S. 161, 165 (1977). See also ante, at 688 (opinion of the Court). Obviously, the scope of each of these three protections turns upon the meaning of the words “same offense,” a phrase deceptively simple in appearance but virtually kaleidoscopic in application. Indeed, we have indicated on at least one prior occasion that the meaning of this phrase may vary from context to context, so that two charges considered the same offense so as to preclude prosecution on one charge after an acquittal or conviction on the other need not be considered the same offense so as to bar separate punishments for each charge at a single proceeding. See Brown v. Ohio, supra, at 166-167, n. 6. In the present case we are asked to decide whether the Double Jeopardy Clause bars the imposition of separate punishments for the crimes of rape and felony murder based on rape. Because the sentences challenged by petitioner were imposed at a single criminal proceeding, this case obviously is not controlled by precedents developed in the" } ]

[ { "docid": "637226", "title": "", "text": "on him and five days’ imprisonment in addition. And this is done because the first judgment was confessedly in excess of the authority of the court. 85 U.S. (18 Wall.) at 175. The circumstances surrounding Thomas’s conviction and sentencing are far different from those in Lange and Bradley. The illegality in the state of Missouri of imposing two sentences when a defendant has been convicted of both felony murder and an underlying felony was not established until 1981. Thomas was sentenced in 1973. At that time, the sentencing court could not possibly have known that its imposition of a sentence for each conviction would later be found unlawful. Moreover, the two sentences were not alternative statutory punishments for one offense. Rather, they were two separate statutory punishments for two separate offenses. Finally, the two punishments were of the same nature — imprisonment — and thus were interchangeable, whereas the punishments in Lange and Bradley were not. The double jeopardy clause “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed. 2d 656 (1969). In Pearce, the Supreme Court interpreted this language to mandate that, when resentencing is required following a new trial, time already served under the old sentence be credited toward the new sentence. The state trial court’s order in the present case, vacating the attempted robbery sentence and crediting the time already served thereunder toward the life sentence for felony murder, is responsive to Thomas’s claim that he cannot be twice punished for the same offense. In accordance with State v. Morgan, Thomas is serving only the sentence imposed on one of his two original convictions. Thomas’s felony murder sentence is not increased by this order, and the result is in accord with the holding in Pearce. Thomas correctly asserts that the double jeopardy clause prohibits the State from requiring him to serve both sentences. However, the double jeopardy clause does not require that Thomas be given the choice of which of two simultaneously imposed prison sentences he is to serve when it transpires that he" }, { "docid": "12071363", "title": "", "text": "guns were never displayed, the evidence showed that the defendants “were brought along for protection and [that] the guns were an integral part of their function”). Accordingly, we decline to set aside his conviction on the weapons count on the ground that it is unsupported by the evidence. Ill Next, Smith argues that the imposition of cumulative sentences for the attempted possession and firearms convictions violates the double jeopardy clause of the fifth amendment. The double jeopardy clause encompasses three protections. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Smith contends that because the prosecution relied on the same conduct to establish both offenses, the imposition of cumulative sentences for those offenses violates the third principle stated in Pearce. We disagree. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), sets forth the test that courts must follow to determine whether punishment under two separate statutory provisions violates the double jeopardy clause. “[WJhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” Id. at 304, 52 S.Ct. at 182. However, the Court has also articulated a significant limitation on the Blockburger test. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 677, 74 L.Ed.2d 535 (1983). In other words, the Hunter Court recast the Blockburger test as a “ ‘rule of statutory construction’ ” which does not apply where there is “ ‘a clear indication of contrary legislative intent.’ ” Id. at 367, 103 S.Ct. at" }, { "docid": "16650612", "title": "", "text": "and in the case sub judice is necessary: “The juror is poorly placed to make a determination as to his own impartiality. Instead, the trial court should make this determination.” 583 F.2d at 190. Consequently, our conclusion that the district court’s inquiry was, under Davis, insufficient to reveal possible juror prejudice, requires revgrsal of the convictions of appellants Hawkins, Holland, Martin Sneed, Jr. and Clyde Sneed. II. Consecutive Sentences for Substantive RICO Count and Predicate Offenses— Gerdes Appellant Gerdes received consecutive sentences on his substantive RICO convic tion, 18 U.S.C. § 1962(c), and the substantive drug charges on which he was convicted. Because these substantive drug charges — three counts of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960(a)(1) — also were alleged in the indictment as the “predicate offenses” which form the “pattern of racketeering activity” necessary to sustain his conviction under the substantive RICO count, Gerdes argues that the district court’s imposition of consecutive sentences for the RICO conviction and the “predicate offenses” violated the double jeopardy clause of the Constitution, and that the sentences imposed on the predicate offenses should be vacated. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980), the Supreme Court recently had occasion to readdress the double jeopardy implications of imposing multiple punishments in a single criminal proceeding. Although proceeding from the well-established principle that “[t]he Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also ‘against multiple punishments for the same offense,’ ” 100 S.Ct. at 1436, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), the Court recognized that because “the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress,” citing United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37; United States v. Hudson & Goodwin, 7 Cranch" }, { "docid": "16650613", "title": "", "text": "imposition of consecutive sentences for the RICO conviction and the “predicate offenses” violated the double jeopardy clause of the Constitution, and that the sentences imposed on the predicate offenses should be vacated. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980), the Supreme Court recently had occasion to readdress the double jeopardy implications of imposing multiple punishments in a single criminal proceeding. Although proceeding from the well-established principle that “[t]he Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also ‘against multiple punishments for the same offense,’ ” 100 S.Ct. at 1436, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), the Court recognized that because “the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress,” citing United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37; United States v. Hudson & Goodwin, 7 Cranch 32, 34, 3 L.Ed. 259, “[t]he question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” 100 S.Ct. at 1436 (citations omitted). Concluding that “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so,” the Court phrased the “dispositive question” as whether Congress intended to provide for multiple punishments. Id. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court established a test for determining whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively: The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. 52 S.Ct. at 182. In the case" }, { "docid": "22098095", "title": "", "text": "against a second prosecution for the same offense after acquittal, and against a second prosecution for the same offense after conviction. See, e. g., Ohio v. Johnson, 467 U. S. 493, 498 (1984). Neither of these protections against successive prosecutions is involved here. Rather, respondent’s initial conviction and sentence for both felony murder and the underlying felony violated the third aspect of the Double Jeopardy Clause, the protection against “multiple punishments for the same offense” imposed in a single proceeding. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969). The constitutional question in this case is what remedy is required to cure the admitted violation. The answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is “limited to ensuring that the total punishment did not exceed that authorized by the legislature.” United States v. Halper, 490 U. S. 435, 450 (1989); see Johnson, supra, at 499; Missouri v. Hunter, 459 U. S. 359, 366-367 (1983). The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments. See, e. g., Johnson, supra, at 499. In this case, respondent’s conviction of both felony murder and attempted robbery gave rise to a double jeopardy claim only because the Missouri Legislature did not intend to allow conviction and punishment for both felony murder and the underlying felony. E. g., Hunter, supra, at 368; see also Morgan, supra, at 1; Olds, supra, at 510 (construing Missouri statute). Given that, in its application to the case before us, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended,” Hunter, supra, at 366, the state-court remedy fully vindicated respondent’s double jeopardy rights. The Missouri court vacated the attempted robbery conviction and sentence and credited the time that respondent had served under that conviction against the remaining sentence for felony murder. This remedy of" }, { "docid": "18845127", "title": "", "text": "assault conviction. However, because Tenn.Code § 39-6-1710(a)(1) allows a five-year enhancement for conviction of a first offense and ten years for conviction of a second offense, and because the magistrate had recommended that Banner’s first conviction (aggravated assault) be vacated, the magistrate likewise recommended that the ten-year enhancement imposed for firing a missile into an occupied dwelling be modified to five years. On April 15, 1988, Respondent Davis filed objections to the magistrate’s report. By order dated May 5, 1988, the United States District Court for the Eastern District of Tennessee adopted the magistrate’s report and granted the writ of habeas corpus on the grounds that Banner’s aggravated assault conviction was constitutionally infirm and that his ten-year enhancement for firing a missile should be reduced to five years. Davis appeals. II. Banner alleges that conviction of both aggravated assault and firing a missile into an occupied dwelling violates the double jeopardy clause, as imposing multiple punishments for one criminal episode. The double jeopardy clause of the fifth amendment of the United States Constitution provides, “No person ... shall ... be subject for the same offense to be twice put in jeopardy of life or limb.... ” This clause affords a criminal defendant three basic protections: “ ‘[I]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Brown v. Ohio, 432 U.S. 161, 165 [97 S.Ct. 2221, 2225, 53 L.Ed.2d 187] (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717 [89 S.Ct. 2072, 2076, 23 L.Ed.2d 656] (1969). Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1983). Whether punishments are “multiple” under the double jeopardy clause is essentially a question of legislative intent. Id. at 499, 104 S.Ct. at 2540; Missouri v. Hunter, 459 U.S. 359, 366-68, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983). When assessing the intent of a state legislature, a federal court is bound by a state court’s construction of that state’s own statutes. See" }, { "docid": "48339", "title": "", "text": "from joinder of counts and noting defendant did not contend that the joinder “confounded his defense because he desired to testify as to some counts and not as to others”). Under these circumstances, we conclude petitioner has failed to show that the joinder of the informations resulted in prejudice so great as to deny him a fair trial. VI. DOUBLE JEOPARDY Petitioner next asserts his consecutive sentences for the CSP and aggravated burglary offenses violated his right against double jeopardy because “the aggravated burglary charges in this case require[d] proof of the same facts necessary to prove the [CSP] charges” and the CSP charges “were predicate offenses for his aggravated burglary charges.” “The Fifth Amendment’s guarantee against double jeopardy ‘protects against multiple punishments for the same offense.’ ” Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir.1993) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). The Supreme Court has held that in the context of multiple punishment, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). Under the traditional double jeopardy test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “ “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each requires proof of a fact which the other does not.’ ” United States v. Raymer, 941 F.2d 1031, 1043-44 (10th Cir.1991) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182). The Supreme Court has further clarified that so long as each provision “requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975). In determining whether" }, { "docid": "9955942", "title": "", "text": "PER CURIAM. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. Petitioner Charles Edward Birr has appealed from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a guilty plea, petitioner was convicted by a Wyoming court of accessory to felony murder and accessory to the underlying felony of aggravated robbery. Petitioner was sentenced to life imprisonment for the murder and twenty to twenty-five years for the robbery with the sentences to run consecutively. The convictions and the sentences were affirmed by the Wyoming Supreme Court on direct appeal. Birr v. State, 744 P.2d 1117 (Wyo.1987). In support of his request for federal habeas relief, petitioner has argued that his sentences for both felony murder and the underlying felony violate the constitutional guarantee against double jeopardy. The double jeopardy clause serves three primary purposes. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after a conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Petitioner’s argument rests on the third protection. Our review of this claim, however, is limited. In cumulative sentencing situations, such as here, the double jeopardy clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent. See Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984)(“We accept, as we must, the Ohio Supreme Court’s determination that the Ohio legislature did not intend cumulative punishment for the two pairs of crimes involved" }, { "docid": "14271652", "title": "", "text": "Morelock suffered rape, sodomy, and sexual abuse by the petitioner. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. Therefore, petitioner’s application for a writ of habeas corpus on the ground of insufficiency of the evidence is denied. IV. In his second ground for relief, the petitioner claims that the imposition of consecutive sentences for his offenses subjected him to Double Jeopardy in violation of the Fifth Amendment of the Constitution, which applies under the Fourteenth Amendment to a state court prosecution. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Double Jeopardy Clause serves three primary purposes. First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense after a conviction. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The petitioner claims that the last of these protections was violated by the imposition of consecutive sentences against him. Petitioner claims that the two rape convictions upon which consecutive sentences were imposed constitute the same offense as the sodomy and sexual abuse charges because each sexual act was part of a continuing course of activity. The record shows, however, that although the rapes were perpetrated against the same victim and took place over the course of the same night, there were significant temporal and spatial differences between the rapes and the acts of sodomy and sexual abuse; each rape was a separate and distinct offense, not the product of a single criminal incident. See People v. Moore, 170 A.D.2d at 849, 566 N.Y.S.2d at 676, lv. denied, 77 N.Y.2d 998, 571 N.Y.S.2d 924, 575 N.E.2d 410 (1991). The evidence presented at trial demonstrated that the petitioner engaged in separate sexual acts constituting distinct offenses. Soon after Morelock entered the petitioner’s car, the petitioner sexually abused and sodomized Morelock. Thereafter, a period of time elapsed during which the petitioner’s car got stuck in, and was freed from," }, { "docid": "1165381", "title": "", "text": "Koza, Brimmage, nor Carmody did the Nevada Supreme Court explicitly analyze legislative intent. But in Koza the state court necessarily interpreted the leg islative intent with regard to authorizing cumulative punishments by first quoting the relevant language on legislative intent from Missouri v. Hunter and then reaching the conclusion that “separate and distinct statutes and offenses are involved.” 681 P.2d at 50. Since the requisite legislative intent to impose multiple punishments therefore exists, we find no violation of the Double Jeopardy Clause. Because petitioner’s remaining contentions either are without constitutional merit or are not properly before a federal court on petition for a writ of habeas corpus, we address them in a separate memorandum opinion. The district court’s denial of the petition for a writ of habeas corpus is AFFIRMED. BOOCHEVER, Circuit Judge, dissenting: Because I believe that Brimmage was placed in jeopardy twice for the same offense in violation of the fifth amendment, I respectfully dissent. The fifth amendment protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In determining what constitutes the “same offense,” Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), states: The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182; see also Whalen v. United States, 445 U.S. 684,100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The majority concedes that robbery is a lesser included offense of felony murder in Nevada, because the robbery statute, Nev.Rev. Stat. § 200.380 (1985), does not require proof of any fact beyond those required to convict under the statute for murder committed in the perpetration of robbery, Nev. Rev.Stat. § 200.030 (1985). Yet even if the two statutes do proscribe the same conduct, recent Supreme Court cases hold that the Double Jeopardy Clause" }, { "docid": "5263418", "title": "", "text": "a new trial. IV The double jeopardy clause protects a defendant against, among other things, “multiple punishments for the same offense,” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) — unless there is “a clear indication of contrary legislative intent.” Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980). As this court has explained: The Supreme Court has held that “[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). Thus, the Double Jeopardy Clause does not prohibit the government from proving violations of two criminal statutes with the same course of conduct if Congress clearly intended to subject defendants to such “double punishment.” Hunter, 459 U.S. at 367, 103 S.Ct. at 678; Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978).” United States v. Simpson, 979 F.2d 1282, 1285 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1345, 122 L.Ed.2d 727 (1993). The district court here held that the double jeopardy clause barred imposing a sentence under the Firearms Act charge (Count II), in addition to the sentence for carjacking, because “Congress has not clearly indicated an intent to authorize cumulative punishment for carjacking and using or carrying a firearm during a carjacking.” We conclude, however, that the language and the legislative history of the Firearms Act call for the contrary conclusion. The Firearms Act, 18 U.S.C. § 924(e)(1), states: Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United" }, { "docid": "11811914", "title": "", "text": "app. § 1202(a), which authorizes an enhanced sentence of fifteen years without possibility of parole for persons having three previous robbery convictions. Price was sentenced to terms of five years on Counts I and II and two years on Count III, all to run consecutively. I. Both Bass and Price argue that their conviction on charges of transporting stolen firearms in interstate commerce, in violation of section 922(i), and of being felons in possession of firearms, in violation of section 1202(a)(1), constitutes multiple punishment for a single offense and, therefore, violates the double jeopardy clause of the fifth amendment. The appellants maintain that the two statutes describe the same offense because the same acts violate both statutes: the same guns were involved in both counts, and the interstate commerce requirement of both offenses is satisfied by their movement from the State of Arkansas into the State of Missouri. The fifth amendment proscribes being “twice put in jeopardy of life or limb” for the same offense. U.S. Const. Amend. V. The Supreme Court has interpreted this provision to proscribe both multiple trials and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Court made clear, however, that the double jeopardy clause bars multiple punishment for a single offense in one proceeding only when the legislature did not intend cumulative punishment. Id. at 366, 103 S.Ct. at 678 (“[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does not more than prevent the sentencing court from prescribing greater punishment than the legislature intended”). When the same act violates two distinct statutory provisions, whether the legislature intended to create two separately punishable offenses or one is determined by the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger inquiry is whether each statute requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304," }, { "docid": "22098094", "title": "", "text": "dissented, concluding that the double jeopardy prohibition against multiple punishments was not violated because respondent would serve time only under the life sentence, which was a single valid punishment intended by the legislature. Judge Bowman joined Judge Hanson, however, in holding that respondent could be resentenced under Mathews. The Eighth Circuit granted rehearing en banc and ordered respondent’s unconditional release. 844 F. 2d 1337 (1988). The court held that under Lange, supra, and Bradley, supra, respondent could not be punished further once he had satisfied the sentence for attempted robbery. The court further held that Mathews, supra, was inapplicable because the prisoner in that case had not completed either of his sentences. Four judges dissented. We granted certiorari, 488 U. S. 1003 (1989), and now reverse. t-H l-H The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” The Clause affords three protections to the criminal defendant. The first two, which are the most familiar, protect against a second prosecution for the same offense after acquittal, and against a second prosecution for the same offense after conviction. See, e. g., Ohio v. Johnson, 467 U. S. 493, 498 (1984). Neither of these protections against successive prosecutions is involved here. Rather, respondent’s initial conviction and sentence for both felony murder and the underlying felony violated the third aspect of the Double Jeopardy Clause, the protection against “multiple punishments for the same offense” imposed in a single proceeding. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969). The constitutional question in this case is what remedy is required to cure the admitted violation. The answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is “limited to ensuring that the total punishment did not exceed that authorized by the legislature.” United States v. Halper, 490 U. S. 435, 450 (1989); see Johnson, supra, at 499; Missouri v. Hunter, 459 U. S. 359, 366-367 (1983). The purpose is" }, { "docid": "5917969", "title": "", "text": "proceeding. Therefore, petitioner has exhausted all available state remedies as to all claims advance in the instant petition. II. The Sentence Imposed at Trial and Petitioner’s Double Jeopardy Claims The Double Jeopardy Clause of the U.S. Constitution, binding upon the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), embodies three distinct protections: (1) protection from a second prosecution following an acquittal, (2) protection from a second prosecution following a conviction, and (3) protection from unauthorized multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). Petitioner contends that the sentence imposed at trial was violative of the third protection extended by the Double Jeopardy Clause. Though cryptically stated, petitioner grounds this claim on two similar contentions: (1) Counts V and VI should have been considered as one crime, and thus the two counts should have been merged for sentencing purposes and (2) the sentences imposed on Counts IV and VIII should not be allowed to run consecutively because both transgressions stemmed from a single criminal transaction. In the multiple punishment context, the scope of judicial inquiry is limited to determining whether the law-makers intended for a single act to be subjected to multiple criminal punishments. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980); Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983); Gillespie v. Ryan, 837 F.2d 628, 630-31 (3d Cir.), cert. denied, 488 U.S. 833, 109 S.Ct. 90, 102 L.Ed.2d 66 (1988). The legislature, not the judiciary, is the governmental body charged with the task of determining the punishments for acts of criminal transgression within the limits prescribed by the Constitution. It is free to craft its laws so that a single act may be properly adjudged as violative of multiple criminal statutes. If an act is determined to be in violation of such laws, the" }, { "docid": "22317970", "title": "", "text": "years for the assault and battery charge. Defendant filed a direct appeal, raising numerous constitutional and procedural errors. On February 23, 1993, the Oklahoma Court of Criminal Appeals affirmed Mr. Cummings’ convictions in a summary opinion. Mr. Cummings then filed a petition for a writ of habeas corpus with the United States District Court for the District of Western Oklahoma. The matter was referred to a magistrate judge, who recommended denial of the petition on all counts except petitioner’s double jeopardy claim. The district court, in a written order on October 24,1996, refused to follow the magistrate’s recommendation as to the double jeopardy claim, adopted the magistrate’s other recommendations, and denied the habeas petition. We granted Mr. Cummings’ motion for a certificate of probable cause to proceed on appeal and ordered briefing on his double jeopardy claim. Respondent concedes that petitioner has exhausted his state remedies for the purposes of federal habeas corpus review. II. On appeal from the district court’s determination of a § 2254 petition, we review the district court’s conclusions of law de novo, but we presume the state court’s factual findings are correct unless they are not fairly supported by the record. See Hatch v. Oklahoma, 58 F.3d 1447, 1453 (10th Cir.1995). We review mixed questions of law and fact de novo. See id. A. Double Jeopardy Mr. Cummings asserts that his conviction for both Robbery with a Dangerous Weapon and Assault and Battery with a Deadly Weapon violates the Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Fourteenth Amendment. The Double Jeopardy Clause consists of three separate constitutional protections. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Here, the third protection is at issue. This protection, however, is limited to" }, { "docid": "13530695", "title": "", "text": "protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. at 717, 89 S.Ct. at 2076. Defendants’ claims here involve only the third protection, that against multiple punishments for the same offense. In a careful and articulate opinion, United States District Judge Horace W. Gilmore, who presided at the jury trial, rejected each of the defendants’ double jeopardy claims. United States v. Finazzo, 520 F.Supp. 1085 (E.D.Mich.1981). Recent decisions of the United States Supreme Court and indeed of our circuit have discussed the application of the Double Jeopardy Clause and, with respect to federal criminal offenses at least, have made it clear that where separate offenses have been charged and tried in the same proceeding, the question whether separate punishments may be imposed is primarily one of Congressional intent. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court considered a District of Columbia court’s imposition of consecutive punishment for rape and' felony murder committed in the course of rape. The Court held that the rape itself was a lesser and included offense of the felony murder charge and that Congress had not authorized consecutive sentences under such circumstances. The Court observed: The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly within the Congress. If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty. Whalen, 445 U.S. at 689, 100 S.Ct. at 1436 (citations and footnotes omitted). Left" }, { "docid": "9731920", "title": "", "text": "that psychological trauma was a sufficient “bodily injury” to warrant an upward adjustment under the guidelines. II The first issue on appeal is whether the district court erred in ordering defendant’s sentence for using a firearm during the bank robbery to run concurrently with his bank robbery sentence. The government argues that using a firearm during the commission of a bank robbery, in violation of 18 U.S.C. § 924(c)(1), carries with it a mandatory sentence of sixty months to run consecutively with defendant’s bank robbery sentence. Defendant maintains that the district court was correct in refusing to run the sentences consecutively because to do so would punish him twice under separate statutes for the same conduct. The Double Jeopardy Clause protects a defendant from “multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Such protection often is invoked when a defendant is punished for the same conduct under two different statutory provisions. In such a case, “the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). If the legislature, as expressed in the language of the statute or its legislative history, clearly intended cumulative punishment under two different statutory provisions, the imposition of multiple punishment does not violate the Double Jeopardy Clause and the court’s inquiry is at an end. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). If the legislative intent is unclear, however, the rule from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), must be applied. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Then, “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other" }, { "docid": "18745666", "title": "", "text": "trial judge was allowed to give the sentence that most comported with his original sentencing scheme. Id. at 828. Jefferson petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ, — U.S.-, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985), vacated the second panel opinion, and remanded the case to this court for further consideration in light of one of its recent decisions on § 848 sentencing, Garrett v. United States, — U.S. -, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Relying on the guidance provided in that opinion, we now conclude that cumulative sentencing for the § 848 conviction and the substantive predicate offenses does not violate the Double Jeopardy Clause and we remand this case to the district court for resentencing consistent with this opinion. II. “The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Of these three protections, only the last is relevant here because Dorothy Jefferson was indicted, prosecuted and convicted for both the § 848 offense and the four predicate § 841(a)(1) offenses in the same proceedings. The question of cumulative sentences for a single course of criminal conduct, imposed at the same proceeding, revolves around the legislature’s intent in creating criminal offenses: are two separate offenses and two separate punishments intended? See Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”); Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 (“[T]he role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.”). In addressing" }, { "docid": "9950327", "title": "", "text": "defendants: protection against “being subjected to the hazards of trial and possible conviction more than once for an alleged offense,” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), and protection “against multiple punishments for the same offense.” United States v. Wilson, 420 U.S. 332, 342-43, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)); see also United States v. DiFrancesco, 449 U.S. 117, 128-29, 101 S.Ct. 426, 432-33, 66 L.Ed.2d 328 (1980). This Court has recognized that “where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended.” United States v. LoRusso, 695 F.2d 45, 53 (2d Cir.1982) (quoting United States v. Wilson, 420 U.S. at 344, 95 S.Ct. at 1022). We believe the petitioner has failed to show that his reprosecution for felony murder violated either protection. Accordingly, we reverse the district court’s decision setting aside the state court conviction for felony murder and granting the petition for the writ of habeas corpus. I The Supreme Court has characterized the prohibition against “multiple trials” as the “controlling constitutional principle” of the Double Jeopardy Clause. United States v. Wilson, 420 U.S. at 345-46, 95 S.Ct. at 1022-23; see also United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). The petitioner contends the state violated this prohibition by reprosecuting him for felony murder after obtaining a conviction for attempted robbery in the first trial. More specifically, he argues that under the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), attempted robbery is the “same offense” as felony murder. Therefore, because the jury convicted him of attempted robbery in the first prosecution, Paul claims that his subsequent prosecution for felony murder violated his Fifth Amendment rights. He asserts, in effect, that the state furthered a “second prosecution for the same offense after conviction.” North Carolina v. Pearce, 395 U.S. 711, 717, 89" }, { "docid": "9955943", "title": "", "text": "against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after a conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Petitioner’s argument rests on the third protection. Our review of this claim, however, is limited. In cumulative sentencing situations, such as here, the double jeopardy clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent. See Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984)(“We accept, as we must, the Ohio Supreme Court’s determination that the Ohio legislature did not intend cumulative punishment for the two pairs of crimes involved here.”); Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679 (“In addition, the Missouri Supreme Court has recognized that the legislature intended that punishment for violations of the statutes be cumulative. We are bound to accept the Missouri court’s construction of that State’s statutes.”). Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination. See, e.g., Banner v. Davis, 886 F.2d 777, 780 (6th Cir.1989) (federal court bound by Tennessee Supreme Court decision that the Tennessee legislature intended cumulative punishment for aggravated assault and firing into an occupied dwelling); Deloach v. Wainwright, 777 F.2d 1524, 1525-26 (11th Cir.l985)(fed-eral court bound by Florida Supreme Court finding that the Florida legislature intended multiple punishments for felony murder and the underlying felony). Here, a majority of the Wyoming Supreme Court, in affirming petitioner’s convictions and sentences over the dissent of two justices, held that the Wyoming legislature intended cumulative punishment for accessory to felony murder and accessory" } ]

[ { "docid": "15002925", "title": "", "text": "On August 24, 1994, Agrigenetics moved for a preliminary injunction to stop defendants from activity which they claimed violated the noncompetition provisions of the employment agreements. The district court held a three-day hearing on this motion and issued an order denying preliminary injunc-tive relief. Agrigenetics, Inc. v. Rose, No. 8:CV94-00102 (D.Neb. Nov. 7, 1994) (Memorandum Opinion). Essentially, the district court concluded that Agrigenetics failed to show that any defendant ever affirmatively initiated steps toward a sale to a former Agrigenetics customer. Thus, the district court reasoned that Agrigenetics was not likely to succeed on the merits of its claim that defendants breached the noncompetition agreements. This appeal followed. II. As a threshold issue, we consider defendants’ argument that our recent decision in Curtis Indus. v. Livingston, 30 F.3d 96 (8th Cir.1994) (“Curtis ”), indicates that we should dismiss this appeal as moot. In that case, an employer sought preliminary injunctive relief ordering former employees to comply with the noncompetition provisions of their employment agreements. As in the present case, the noncompetition restriction was to last for one year. Because the one-year period, as measured by the respective departure dates of the defendant-employees, had expired, we held that the appeal was moot. Id. at 97. In response to the employer’s argument that it was entitled to one year free from competition, we held that contracts not to compete, being in restraint of trade, should be narrowly construed, and therefore concluded that the employer was entitled to no more than the contract as written would have given it — one year free of competition from departing employees measured from the date of their departure from the company. Id. We see no factual distinctions between Curtis and the present case. All defendants left Agrigenetics by mid-February 1994; thus, the term of noncompetition provided for in the employment agreements would have expired in February 1995. Nevertheless, the holding of Curtis is not necessarily disposi-tive, because Curtis was decided under Minnesota law, and the present case is governed by the law of Nebraska. However, unless Nebraska state law provides for the equitable extension of the" } ]

[ { "docid": "4137028", "title": "", "text": "debtors have since made payments in accordance with the confirmed plans. In fact, discharges were entered with respect to the Hadens and the Hugheses in August 1997 and June 1998, respectively; no discharge has been entered for Clay, although he has apparently finished making all payments under the plan. See Brief for Appellant UST at 12 n. 4; Supp. Brief for Appellant UST at 5; Supp. Brief for Appellees at 5. Pending appeal, the debtors have held in escrow trustee’s fees on all disputed payments, equal to the amount required if the trustees’ objections were sustained. See Brief for Appellant Standing Trustee at vi. These appeals followed. Discussion Mootness Before considering the merits of the trustees’ separate appeals, we must decide whether we have jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Article III of the United States Constitution limits the jurisdiction of the federal courts to actual, ongoing cases and controversies. See Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 484 (8th Cir.1998) (Craig). “It is of no consequence that the controversy was live at earlier stages in this case; it must be live when we decide the issues.” South Dakota v. Hazen, 914 F.2d 147, 150 (8th Cir.1990). When, during the course of litigation, the issues presented in a case “lose their life because of the passage of time or a change in circumstances .... and a federal court can no longer grant effective relief,” the case is considered moot. Beck v. Missouri State High Sch. Activities Ass’n, 18 F.3d 604, 605 (8th Cir.1994). “[I]f this case is indeed moot, we must refrain from reaching the merits because any opinion issued would be merely ‘advisory’ and rest on hypothetical underpinnings.” Craig, 163 F.3d at 484. With these principles in mind, we examine whether the trustees’ separate appeals remain alive, given that all three sets of debtors have completed payments under their respective plans and that the Hadens and the Hugheses have been discharged from bankruptcy proceedings. Debtors claim that the appeals of both the" }, { "docid": "4861581", "title": "", "text": "requested form of relief in this case. At any rate, did this second request for relief become moot when the City paid these other grants and when most of them went to entities that have never participated in this case — making it difficult, if not judicially impossible, to get the money back should American Atheists prevail on appeal? Cf. Laskowski v. Spellings, 443 F.3d 930, 933-35 (7th Cir.2006), vacated on other grounds by Univ. of Notre Dame v. Laskowski, — U.S. —, 127 S.Ct. 3051, 168 L.Ed.2d 755 (2007); Guidry v. Sheet Metal Workers Int’l Ass’n, 10 F.3d 700, 705 (10th Cir.1993). Here again St. John’s enters the picture: As a party, it may be ordered to return the grants already made to it. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213-14, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002); United States v. Lane Labs-USA Inc., 427 F.3d 219, 225 (3d Cir.2005). If American Atheists prevails on appeal, it thus may obtain at least a “partial remedy” — the return of St. John’s grants — which suffices to prevent this aspect of the case from being moot. Church of Scientology, 506 U.S. at 13, 113 S.Ct. 447; see Ams. United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 421 (8th Cir.2007) (“[T]he dispute as to restitution, premised on the unconstitutionality of the performed contracts, is a live controversy.”); In re Zenith Elecs. Corp., 329 F.3d 338, 340-41 n. 1 (3d Cir.2003); cf. Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 767-68 n. 23, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (plurality opinion). Laskowski v. Spellings, 546 F.3d 822 (7th Cir.2008), we realize, held that federal taxpayers cannot pursue similar relief once funds have been disbursed to intermediary party recipients of the grants after they released the funds to non-party beneficiaries. Allowing a federal-taxpayer plaintiff to “proceed against a private grant recipient for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case,” the court reasoned, would “extend the Flast exception beyond the limits" }, { "docid": "9490014", "title": "", "text": "jurisdiction over the multidistrict litigation, issued an injunction to prevent other related cases from reaching class certification. The court noted that allowing multiple class certifications against the same defendants - based on the same facts could potentially cause serious confusion and chaos. The district court granted an injunction under the All Writs Act, codified at 28 U.S.C. § 1651. On February 12, 2004, plaintiff James Edward Campbell, et al. (the Campbell plaintiffs), filed a motion to modify the injunction to be applicable only to the actions pending in federal court against Nextel. The Campbell plaintiffs also filed an appeal of the injunction in this court. That appeal is now moot. After the filing of this appeal, the district court dissolved the injunction. When issues presented in a case \"lose their life because of the passage of time or a change in circumstances .,. and a federal court can no longer grant effective relief,” the case is considered moot. Beck v. Missouri State High Sch. Activities Ass'n, 18 F.3d 604, 605 (8th Cir.1994) (per curiam). We are required by Article III of the United States Constitution to refrain from addressing moot issues that result in advisory opinions. Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir.2000). Because the district court dissolved the injunction that the Campbell plaintiffs appealed, no controversy remains for adjudication. . See also Sunkyong Intn’l, Inc. v. Anderson Land & Livestock Co., 828 F.2d 1245, 1252 (8th Cir.1987) (recognizing that an amended complaint can cure a defect in subject-matter jurisdiction); Carney v. Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir.1994) (holding that relation back is appropriate “even when the amendment states a new basis for subject matter jurisdiction”); Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 887 (3rd Cir.1992) (\"Relation back to the date of the original filing applies even when the amendment states a new basis for subject matter jurisdiction.”); 6A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure, § 1497, at 94-95 (1990) (explaining that an amendment changes the legal theory on which the action initially was" }, { "docid": "11795826", "title": "", "text": "defendants, Fauconniere was not one of those solicited because its most recent bid on a canteen-cup contract indicated that it could not meet the requisite delivery schedule. However, the District Court was not convinced that Fauconniere had been denied an opportunity to bid for any reason other than the fact that it was being investigated, and concluded that the company’s procedural rights had been violated. Applying the standard set forth in Dataphase Systems, Inc., v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981) (en banc), the Court preliminarily enjoined further performance of the canteen-cup contract, adding that it would hold a hearing on whether a permanent injunction should issue at the earliest possible date. Defendants now appeal from the order granting Fauconniere preliminary injunctive relief. Defendants argue, among other things, that the District Court abused its discretion in granting the injunction because Fauconniere failed to establish that it was entitled to such relief. Both parties acknowledge, however, that because the District Court stayed the injunction pending appeal, the canteen cup contract has now been completed. There is therefore nothing left to enjoin, and the parties “lack a legally cognizable interest in a determination by this court of whether the district court properly granted the preliminary injunction.” Olin Water Services v. Midland Research Laboratories, Inc., 774 F.2d 303, 305 (8th Cir.1985). The appeal is thus moot. Defendants contend that even though the enjoined contract has been fully performed, their arguments that the District Court was without jurisdiction, and that an indispensabe party was not joined, are still live issues. The lawsuit, including Fauconniere’s prayer for a permanent injunction against suspension, remains pend ing. These defenses may be asserted in further proceedings. But so far as this appeal is concerned, raising only the propriety of the preliminary injunction, they are wholly academic. The outcome of this appeal cannot be affected, however these issues are resolved. If a case is moot, federal judicial power is at an end, and we have no right to address other issues, even those called “jurisdictional.” The existence of a live controversy is a basic prerequisite, without" }, { "docid": "15804659", "title": "", "text": "Fuel Co. v. United Mine Workers of Am., 444 U.S. 212, 214 n. 2, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979) (“The contracts have expired, and the question of injunctive relief is out of the case.”); Planned Parenthood v. Steinhaus, 60 F.3d 122, 125 (2d Cir.1995) (noting that a request for injunctive relief is moot after a contract has expired). Despite the contract’s expiration, Plaintiffs seek shelter under the exception to mootness for conduct that is capable of repetition yet evading review. “The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012); see also Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll, of the Law v. Martinez, 561 U.S. 661, 724 n. 3, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (Alito, J., dissenting) (collecting cases). Ordinarily, “[voluntary cessation does not moot a case or controversy unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)) (second alteration in original). The Supreme Court has stated that “the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Laidlaw, 528 U.S. at 189, 120 S.Ct. 693; See also Already, LLC v. Nike, Inc., — U.S. -, 133 S.Ct. 721, 727, 184 L.Ed.2d 553 (2013). Indeed, courts are to “view voluntary cessation ‘with a critical eye,’ lest defendants manipulate jurisdiction to ‘insulate’ their conduct from judicial review.” Brown v. Buhman, 822 F,3d 1151, 1166, 2016 WL 2848510, at *11 (10th Cir. May 13, 2016) (citing Knox, 132 S.Ct. at 2287)." }, { "docid": "23200045", "title": "", "text": "the demands for the stipulated penalties. . The City's contention that our review of a finding of civil contempt is plenary is based on a misreading of American Greetings. In American Greetings, there were two contempt orders on appeal. One of the two was reversed because the preliminary injunction on which it was based was insufficiently specific, a legal issue. We upheld the other contempt order which \"clearly [fell] ... within the’scope of [the underlying] Consent Order” applying a much more limited review. 807 F.2d at 1148. . In light of our conclusion, we do not address the plaintiffs' argument that the City could have filed a motion under Fed.R.Civ.P. 60(b)(4) to relieve it of the order on the ground it was void for failure to accord it due process. . In Public Citizen Health Research Group v. Brock, 823 F.2d 626 (D.C.Cir.1987), on which the City relies, the court was reviewing an application for contempt brought against OSHA for its lengthy delays in setting standards. The court declined to hold OSHA in contempt but required that it adhere to dates it set out in its response to the contempt motion. OSHA, unlike the City in this case, had not signed a consent decree specifying dates certain for compliance. Thus that case is inapplicable here. . The “availability of effective relief is one measure of the existence of a continuing controversy between parties with cognizable interests in the outcome” and “also may indicate the presence of a continuing effect of the alleged misconduct on a complainant.” International Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915-16 (3d Cir.1987). Accord Fauconniere Mfg. Corp. v. Secretary of Defense, 794 F.2d 350, 351-52 (8th Cir.1986) (appeal of preliminary injunction enjoining performance of contract moot when stay pending appeal granted and contract completed); Gjertsen v. Board of Election Comm'rs, 751 F.2d 199, 201-02 (7th Cir.1984) (appeal of grant of preliminary injunction of minimum signature requirements for primary ballots moot where primary held and defendants did not request election to be re-run); cf. Brill v. General Indus. Enter., 234 F.2d 465, 469 (3d Cir.1956) (appeal" }, { "docid": "23506445", "title": "", "text": "these reasons, we conclude that the appellants were the prevailing parties in the First Suit, and that the district court erred as a matter of law in holding to the contrary. Accordingly, we reverse the district court’s order and remand the First Suit so that the court may determine whether special circumstances exist that might bar an award, and, if not, the amount of attorneys’ fees and costs to which the appellants are entitled. B. The Compensatory Education Claim. We turn now to the justiciability of the appellants’ compensatory education claim. It is black-letter law that, in a federal court, justiciability requires the existence of an actual case or controversy. U.S. Const, art. III, § 2, cl. 1. Even if an actual case or controversy exists at the inception of litigation, a case may be rendered moot (and, therefore, subject to dismissal) if changed circumstances eliminate any possibility of effectual relief. CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 620-21 (1st Cir.1995). In a suit seeking only injunctive relief, this ordinarily means that once the act sought to be enjoined occurs, the suit must be dismissed as moot. E.g., Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir.1993). If, however, a plaintiff seeks alternative redress (such as money damages) in addition to injunctive relief, the occurrence of the watershed event may not render the controversy moot. CMM Cable Rep., 48 F.3d at 621; Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97-98 (8th Cir. 1994). We review de novo a lower court’s dismissal of an action on the ground of mootness. See Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 5 (1st Cir.1999); N.H. Right to Life Political Action Comm, v. Gardner, 99 F.3d 8, 12 (1st Cir.1996). In this instance, the question of mootness depends on the viability of the appellants’ compensatory education claim. We know that a child eligible for special education services under the IDEA may be entitled to further services, in compensation for past deprivations, even after his or her eligibility has expired. See, e.g., Adams, 159 F.3d at 682" }, { "docid": "23209289", "title": "", "text": "because this appeal can no longer serve the intended harm-preventing function, or, put another way, this court, within the isthmian confines of an interlocutory appeal from an order refusing to restrain a now completed act, has no effective relief to offer. Our analysis finds ample support in the case law. It has been common ground throughout the last century that an appeal, although live when taken, may be rendered moot by subsequent developments. See Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895). More specifically, “an appeal from the denial of a motion for a preliminary injunction is rendered moot when the act sought to be enjoined has occurred.” McLane v. Mercedes-Benz of North Am., Inc., 3 F.3d 522, 524 (1st Cir. 1993); accord Bank of N.Y., 9 F.3d at 1067; Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir.1993). Based on these precedents, it appears that CMM’s appeal is moot. See Bank of N.Y., 9 F.3d at 1067 (explaining that an appeal from the denial of a motion for preliminary injunction is moot if the appellate court can no longer preserve, or feasibly restore, the status quo); Oakville, 986 F.2d at 613 (holding that a case is moot upon the inability of a court to provide effective relief in respect to the claim before it). We emphasize that appellant’s suit remains pending in the district court. Unlike this appeal, the suit itself is not moot because the relief requested is attainable; if appellant ultimately prevails, the district court can award money damages, attorneys’ fees, and other effective relief. A suit that seeks damages for harm caused by past practices is not rendered moot by the cessation of the challenged conduct. See Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97-98 (8th Cir.1994) (explaining that a judgment declaring an appeal of a ruling anent a preliminary injunction moot does not preclude the district court from proceeding to hear and determine a claim for damages arising out of the same conduct); Trane Co. v. O’Connor Sec., 718 F.2d 26, 27 (2d Cir.1983) (dismissing appeal" }, { "docid": "23250811", "title": "", "text": "of Two in every instance of contracting. Id., at 935. We granted certiorari to decide whether § 8127(d) requires the Department to apply the Rule of Two in all contracting, or whether the statute gives the Department some discretion in applying the rule. 576 U.S. -, 135 S.Ct. 2857, 192 L.Ed.2d 894 (2015). II Before we reach the merits, we must assess our jurisdiction. Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies,” and “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U.S. -, -, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (internal quotation marks omitted). Here, no live controversy in the ordinary sense remains because no court is now capable of granting the relief petitioner seeks. When Kingdomware filed this suit four years ago, it sought a permanent injunction and declaratory relief with re spect to a particular procurement. The services at issue in that procurement were completed in May 2013. And the two earlier procurements, which Kingdomware had also protested, were complete in September 2012. See Decl. of Corydon Ford Heard III ¶¶6-8. As a result, no court can enjoin further .performance of those services or solicit new bids for the performance of those services. And declaratory relief would have no effect here with respect to the present procurements because the services have already been rendered. ? a case would generally be moot in such circumstances, this Court’s precedents recognize an exception to the mootness doctrine for a controversy that is “‘capable of repetition, yet evading review.’ ” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). That exception applies “only in exceptional situations,” where (1) “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and (2) “there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Ibid. (internal quotation marks omitted; brackets in original). That exception applies to these short-term contracts." }, { "docid": "19032812", "title": "", "text": "able to allege a continuing likelihood that the defendant will violate the CWA if not enjoined. See id. The Supreme Court subsequently adopted this reading of the statute in Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 66, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). En route to its holding in Pawtuxet, the First Circuit stated in dicta that, under the terms of the CWA, \"[a] plaintiff who makes allegations warranting injunctive relief in good faith, judged objectively, may recover a penalty judgment for past violations even if the injunction proves unobtainable.” Pawtuxet, 807 F.2d at 1094. Nowhere in that opinion, however, did the court address Article Ill's case-or-controversy requirement. Rather, its opinion spoke only to statutory concerns and, therefore, is not instructive on the issue of constitutional justiciability. . Plaintiffs’ citation to a line of cases in other courts holding that the mooting of an injunctive action does not moot an action for CWA civil penalties is of no avail. These cases either explicitly or implicitly rely upon the voluntary cessation exception to the mootness doctrine in reaching their conclusions. See Comfort Lake Ass’n Inc. v. Dresel Contracting, Inc. 138 F.3d 351, 356 (8th Cir.1998) (\"[Ejven if a polluter's voluntary permanent cessation of the alleged violations moots a citizen-suit claim for injunctive relief, it does not moot a related claim for civil penalties.”) (citing Atlantic States Legal Found.., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 442, 139 L.Ed.2d 379 (1997)); Natural Resources Defense Council v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 502-03 (3d Cir.1993); Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1135 (11th Cir.1990); Chesapeake Bay Found., 890 F.2d at 696-97. Because that exception does not apply to the instant case, these cases are distinguishable. Additionally, to the extent that these courts rely on the CWA’s policies and statutory framework to justify their conclusions, they ignore the fact that the mootness doctrine is grounded in Article Ill's case-or-controversy requirement. See Arizonans for Official English, 520" }, { "docid": "16201617", "title": "", "text": "A would require court action to reinitiate any attempt to enter Tanager Place’s facility. Because the case is being dismissed with prejudice, no court would enjoin Tanager Place from denying IP & A access to its residents to investigate R.J.’s disappearance, and thus we conclude that the voluntary cessation exception to the mootness doctrine does not apply. Second, this case is not capable of repetition, yet evading review. To come within this narrow exception, the following two elements must exist: (1) there must be a reasonable expectation that the same complaining party will be subjected to the same action again, and (2) the challenged action must be of a duration too short to be fully litigated before becoming moot. Nat’l Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 691 (8th Cir.2003). As to the first element, we acknowledge that these parties may come before us again. As to the second element, however, we see no apparent reason why a similar future action could not be fully litigated before the case becomes moot. In Neighborhood Transportation Network, Inc. v. Pena, we held that a complaint seeking to enjoin a highway construction project no longer presented a live controversy after the project was completed. 42 F.3d 1169, 1173 (8th Cir.1994). We further held that the case was moot and did not come within the capable of repetition, yet evading review exception: “[This] case was mooted before this appeal could be addressed. It does not follow, however, that similar future cases will evade review. Future projects may be sufficiently time-consuming so as to permit appellate review.” Id. Similarly, IP & A’s investigation into R.J.’s disappearance ended during the appellate process, mooting the present case. There is no indication, however, that investigations will generally end while a case is being reviewed. Tanager Place might have avoided mootness if it had taken advantage of its procedural options. “Where prompt application for a stay pending appeal can preserve an issue for appeal, the issue is not one that will evade review.” Neighborhood Transp. Network, Inc., 42 F.3d at 1173 (internal quotations and citations" }, { "docid": "4861582", "title": "", "text": "St. John’s grants — which suffices to prevent this aspect of the case from being moot. Church of Scientology, 506 U.S. at 13, 113 S.Ct. 447; see Ams. United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 421 (8th Cir.2007) (“[T]he dispute as to restitution, premised on the unconstitutionality of the performed contracts, is a live controversy.”); In re Zenith Elecs. Corp., 329 F.3d 338, 340-41 n. 1 (3d Cir.2003); cf. Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 767-68 n. 23, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (plurality opinion). Laskowski v. Spellings, 546 F.3d 822 (7th Cir.2008), we realize, held that federal taxpayers cannot pursue similar relief once funds have been disbursed to intermediary party recipients of the grants after they released the funds to non-party beneficiaries. Allowing a federal-taxpayer plaintiff to “proceed against a private grant recipient for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case,” the court reasoned, would “extend the Flast exception beyond the limits of the result in Flast.” Id. at 827. And because Hein “strictly confined” Flast “to the result in Flast,” the court concluded that Hein prohibited any such extension. Id. Laskowski does not affect this case for at least two reasons. American Atheists, to repeat, premises standing on its members’ status as municipal, not federal, taxpayers, and accordingly any order requiring St. John’s to repay the funds it received would not extend Flast — would not, indeed, even implicate Flast. And because Laskowski involved a party intermediary who had received federal funds, but not an end recipient of the funds who was a party to the case, the decision raised restitution questions (and restitution complexities) not presented here. No party to this case, notably, has questioned the federal district court’s authority to require St. John’s to return the funds it already has received for its qualifying and (thus far) court-approved reimbursement grants. The case is not moot. III. The First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, see" }, { "docid": "23200046", "title": "", "text": "required that it adhere to dates it set out in its response to the contempt motion. OSHA, unlike the City in this case, had not signed a consent decree specifying dates certain for compliance. Thus that case is inapplicable here. . The “availability of effective relief is one measure of the existence of a continuing controversy between parties with cognizable interests in the outcome” and “also may indicate the presence of a continuing effect of the alleged misconduct on a complainant.” International Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915-16 (3d Cir.1987). Accord Fauconniere Mfg. Corp. v. Secretary of Defense, 794 F.2d 350, 351-52 (8th Cir.1986) (appeal of preliminary injunction enjoining performance of contract moot when stay pending appeal granted and contract completed); Gjertsen v. Board of Election Comm'rs, 751 F.2d 199, 201-02 (7th Cir.1984) (appeal of grant of preliminary injunction of minimum signature requirements for primary ballots moot where primary held and defendants did not request election to be re-run); cf. Brill v. General Indus. Enter., 234 F.2d 465, 469 (3d Cir.1956) (appeal of refusal to enjoin sale of corporation's assets moot because sale consummated and \"where the act sought to be restrained has been performed, the appellate courts will deny review on the ground of mootness\"). . The City also argues that the district court penalized it for appealing the Order of October 5, 1993 imposing the stipulated penalties by basing the contempt finding in the Order of November 1, 1993 in part on the City’s failure to pay the stipulated penalties in response to the plaintiffs' demand letters. We need not address this argument because the City's failure to abide by the other two orders listed is clear. This argument may be addressed on remand should the appropriate sanction be considered once again. . With respect to the \"compensatory\" purpose of civil contempt, the Bagwell Court reaffirmed the \"longstanding authority” of judges \"to enter broad compensatory awards for all contempts through civil proceedings.\" Bagwell,-U.S. at -, 114 S.Ct. at 2563; see also Roe, 919 F.2d at 868 (\"The purpose of civil contempt is primarily remedial and" }, { "docid": "437382", "title": "", "text": "argues that the district court lacked subject matter jurisdiction to issue declaratory relief because plaintiffs’ claims were moot at the time of the court’s decision. We agree. “Federal courts are courts of limited jurisdiction and can only hear actual ‘eases or controversies’ as defined under Article III of the Constitution.” Neighborhood Tramp. Network, Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir.1994). “Mien a case ... no longer presents an actual, ongoing case or controversy, the case is moot and the federal court no longer has jurisdiction to hear it.” Id. This requirement applies to all stages of the litigation, id., and “applies with equal force to actions for declaratory judgment as it does to actions seeking traditional coercive relief.” Marine Equip. Management Co. v. United States, 4 F.3d 643, 646 (8th Cir.1993). Because plaintiffs have been released on parole and are no longer confined at WMCC, their claims are moot. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985) (ordinarily claim “to improve prison conditions is moot if [plaintiff] is no longer subject to those conditions”). Contrary to plaintiffs’ argument, their claims do not fall within the “capable-of-repetition-yet-evading-review” exception to the mootness doctrine. This exception “applies only in exceptional situations, where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there ‘ [is] a reasonable expectation that the same complaining party [will] be subject to the same action again[.]” Spencer v. Kemna, — U.S.-, 118 S.Ct. 978, 988, 140 L.Ed.2d 48 (1998) (internal quotations and citations omitted). As to the “evading-review” prong, “the focus of our analysis ... is not on the length of time over which the particular action challenged occurred.” Clark v. Brewer, 776 F.2d 226, 229 (8th Cir.1985). “Rather, the proper inquiry is whether the [challenged] activity is by its very nature short in duration, so that it could not, or probably would not, be able to be adjudicated while fully alive.” Id. (emphasis in original; internal quotation omitted). For example, in Clark, this court held" }, { "docid": "16201616", "title": "", "text": "the Constitution. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 611 (8th Cir.2003). This controversy must exist throughout appellate review. Deakins, 484 U.S. at 199, 108 S.Ct. 523. In the present case, IP & A has concluded its investigation and no longer seeks access to Tanager Place’s residents. Because IP & A no longer seeks relief in federal court, no live controversy exists between the parties, and this appeal is thus moot. Accordingly, we vacate the injunction and remand the case with directions to dismiss with prejudice. III. Appellants argue that this controversy remains justiciable because it falls within an exception to the mootness doctrine. We conclude that it does not. First, this case differs from one in which the defendant attempts to avoid appellate review by voluntarily ceasing allegedly illegal conduct. In that instance, the defendant is free to reinitiate the challenged conduct once the mooted case is dismissed. Id. at 200 n. 4, 108 S.Ct. 523. Here, IP & A would require court action to reinitiate any attempt to enter Tanager Place’s facility. Because the case is being dismissed with prejudice, no court would enjoin Tanager Place from denying IP & A access to its residents to investigate R.J.’s disappearance, and thus we conclude that the voluntary cessation exception to the mootness doctrine does not apply. Second, this case is not capable of repetition, yet evading review. To come within this narrow exception, the following two elements must exist: (1) there must be a reasonable expectation that the same complaining party will be subjected to the same action again, and (2) the challenged action must be of a duration too short to be fully litigated before becoming moot. Nat’l Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 691 (8th Cir.2003). As to the first element, we acknowledge that these parties may come before us again. As to the second element, however, we see no apparent reason why a similar future action could not be fully litigated before the case becomes moot." }, { "docid": "19754603", "title": "", "text": "the appeals of those orders moot. Although none of the parties to this appeal has urged this Court to dismiss the case, we must nevertheless satisfy ourselves that this case is not moot. See Kremens v. Bartley, 431 U.S. 119, 136, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977). We are so satisfied for numerous reasons. First, we note that the injunction issued by the District Court in Nebraska is still in effect, so the Corps’s appeal from that injunction is clearly not moot, and many, if not all, of the substan tive issues raised by the South Dakota and North Dakota appeals will be decided anyway. The North Dakota and South Dakota cases fall within the well-known “capable of repetition, yet evading review” exception to the mootness doctrine. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). This exception applies when two conditions are met: “(1) the challenged action [is] in its duration too short to be fully litigated pri- or to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). A preliminary injunction that bars the Corps from releasing water from the reservoirs during spawning will never last long enough to allow for full litigation because of the brevity of spawning season. Thus, if these actions were to recur, they would continually evade review. Moreover, we have every reason to suspect that these events will recur. On previous occasions, we were inclined to think this type of litigation would not repeat itself. See South Dakota v. Hazen, 914 F.2d 147 (8th Cir.1990) (deciding case was moot because the injunction had expired); cf. Missouri ex rel. Nixon v. Craig, 163 F.3d 482 (8th Cir.1998) (deciding that a challenge to the Corps’s annual operating plan was moot because the plan had lapsed). But repetition now seems quite likely. At oral argument the parties agreed that drought conditions continue along the River, meaning that the Corps will again be" }, { "docid": "21877626", "title": "", "text": "Because Ali has failed to comply with the order of supervision requiring him to report to BICE and to notify BICE of any change of residence, BICE considers Ali a fugitive and intends to apprehend Ali and return him to custody. On February 2, 2005, the original panel in this case ordered supplemental briefing to address the current custodial status of Ah, whether Ah’s status rendered this appeal moot, and the effect on this appeal of two recent Supreme Court decisions, Jama v. Immigration & Customs Enforcement, — U.S. -, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005), and Clark v. Martinez, — U.S.-, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). In response to the request for supplemental briefing, both Ali and the government contend Ah’s release does not moot this appeal. The government argues that if Ah is located, his future detention is likely and, therefore, a case or controversy continues to exist. Ah’s counsel argues, because the government intends to rein-carcerate Ah if given the opportunity, a case or controversy remains present. Two varieties of mootness exist: Article III mootness and prudential mootness. Article III mootness arises from the Constitution’s case and controversy requirement: “Article III of the United States Constitution limits the jurisdiction of the federal courts to actual, ongoing cases and controversies.” Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir.2000); see U.S. Const. art. III, § 2, cl. 1. “When, during the course of litigation, the issues presented in a case ‘lose their life because of the passage of time or a change in circumstances ... and a federal court can no longer grant effective relief,’ the case is considered moot.” Id. (quoting Beck v. Mo. State High Sch. Activities Ass’n, 18 F.3d 604, 605 (8th Cir.1994) (alteration in original)); see also Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (stating an action becomes moot where it “no longer presents] a case or controversy under Article III”). If an issue is moot in the Article III sense, we have no discretion and must dismiss the action for lack of jurisdiction." }, { "docid": "11795827", "title": "", "text": "completed. There is therefore nothing left to enjoin, and the parties “lack a legally cognizable interest in a determination by this court of whether the district court properly granted the preliminary injunction.” Olin Water Services v. Midland Research Laboratories, Inc., 774 F.2d 303, 305 (8th Cir.1985). The appeal is thus moot. Defendants contend that even though the enjoined contract has been fully performed, their arguments that the District Court was without jurisdiction, and that an indispensabe party was not joined, are still live issues. The lawsuit, including Fauconniere’s prayer for a permanent injunction against suspension, remains pend ing. These defenses may be asserted in further proceedings. But so far as this appeal is concerned, raising only the propriety of the preliminary injunction, they are wholly academic. The outcome of this appeal cannot be affected, however these issues are resolved. If a case is moot, federal judicial power is at an end, and we have no right to address other issues, even those called “jurisdictional.” The existence of a live controversy is a basic prerequisite, without which we simply may not proceed. Defendants submit that even if the injunctive aspect of the case is moot, the appeal is not moot because they may be able to recover damages on the injunction bond posted by Fauconniere if we determine that the District Court erred in grant ing the injunction. We do not agree. It may be that defendants have a right to recover on the injunction bond, but that issue is not presently before the Court, nor does that issue require us to rule on the propriety of the preliminary injunction in the limited context of this appeal. See id. at 307-08. Accordingly, we dismiss the appeal as moot, and remand this matter to the District Court with directions to vacate as moot its order granting a preliminary injunction. See United States v. Munsing-wear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). The complaint of course remains pending (so far as we know), and the District Court should go forward to decide it in due course. It is so" }, { "docid": "15296994", "title": "", "text": "(1) the challenged action is of too short a duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. See Hickman, 144 F.3d at 1142-43. “The capable of repetition yet evading review rule is an extraordinary and narrow exception to the mootness doctrine.” Randolph v. Rodgers, 170 F.3d 850, 856 n. 7 (8th Cir.1999); see also Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 485 (8th Cir.1998) (exception applies only in “exceptional circumstances” (quotation marks omitted)). In this case, FWS concedes that the action is capable of repetition. The dispute here concerns whether the nature of the challenged action is such that it evades review. The Humane Society contends that the short time frame between the issuance of the permit and the removal and killing of the geese prevents timely review of their claim. However, after the district court denied its motion for a preliminary injunction, the Humane Society could have immediately appealed that denial, see 28 U.S.C. § 1292(a)(1), and sought an injunction pending appeal. See Fed.R.Civ.P. 62(c) (“When an appeal is taken from an interlocutory or final judgment ... denying an injunction, the court in its discretion may ... grant an injunction during the pendency of the appeal....”). The Humane Society also could have sought an expedited appeal, a remedy which this court has granted in the past. See, e.g., Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960 (8th Cir.1995) (per curiam) (appeal heard three days after action filed); South Dakota v. Hazen, 914 F.2d 147, 148 (8th Cir .1990) (appeal heard within seven days of grant of preliminary injunction). When a party has these legal avenues available, but does not utilize them, the action is not one that evades review. See Craig, 163 F.3d at 485 (referring to availability of preliminary injunctions, emergency stays, and expedited appeals and holding that case was not one evading review when plaintiff did not seek expedited review and relief); Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169," }, { "docid": "15296993", "title": "", "text": "appeal this ruling. Both parties later moved for summary judgment. By the time briefing was completed on the motions, however, the roundup and killings had been completed. Consequently, on November 2, 1998, the district court dismissed the Humane Society’s action as moot. II. The Humane Society argues that the action is not moot because it is capable of repetition yet evading review. We review a dismissal for mootness de novo. See St. Louis Fire Fighters Ass’n Int’l Ass’n of Fire Fighters Local 73 v. City of St. Louis, 96 F.3d 323, 329 (8th Cir.1996). A case that no longer presents a five case or controversy is moot, and a federal court lacks jurisdiction to hear the action. See Hickman v. Missouri, 144 F.3d 1141, 1142 (8th Cir.1998). Nevertheless, an exception to the mootness doctrine exists where the challenged conduct is “capable of repetition, yet evading review.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (quotation marks omitted). Under this exception, a court may hear an otherwise moot case when (1) the challenged action is of too short a duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. See Hickman, 144 F.3d at 1142-43. “The capable of repetition yet evading review rule is an extraordinary and narrow exception to the mootness doctrine.” Randolph v. Rodgers, 170 F.3d 850, 856 n. 7 (8th Cir.1999); see also Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 485 (8th Cir.1998) (exception applies only in “exceptional circumstances” (quotation marks omitted)). In this case, FWS concedes that the action is capable of repetition. The dispute here concerns whether the nature of the challenged action is such that it evades review. The Humane Society contends that the short time frame between the issuance of the permit and the removal and killing of the geese prevents timely review of their claim. However, after the district court denied its motion for a preliminary injunction, the Humane Society could have immediately appealed" } ]

[ { "docid": "8836126", "title": "", "text": "conflicting interests of management and labor is within the NLRB’s area of expertise and for that reason this Court should give deference to the balance struck by the Board. Because it held that the lobby was not a work area, the Board did not reach or decide whether the lobby should be characterized the same as a retail establishment. It might be said that inferentially the Board decided this issue adversely to the Company when it declined to hold that the lobby was so much as a work area. On the other hand, we do not know what the Board might have held on this point had it been of the opinion that the lobby was a work area, primarily used for the sale of classified ads and other items. In the meantime, the Supreme Court has decided Beth Israel Hospital, Petitioner v. National Labor Relations Board, - U.S. -, 98 S.Ct. 2463, 57 L.Ed.2d 370 [No. 77-152, June 22, 1978, 46 U.S.L.W. 4764], Although this decision was in the context of a hospital cafeteria, the views there expressed may be of assistance to the Board in determining whether the lobby was entitled to the same treatment as a retail store or a hamburger outlet. Accordingly, the Board Order here in issue will be enforced in all respects except as to the lobby. As to the lobby, the case will be remanded to the Board for further proceedings not inconsistent herewith. ENFORCED in part REMANDED in part. . The contentions of the company, attempting to support the rules promulgated at its printing plant on 34th Street, St. Petersburg, are altogether untenable and the board order insofar as it applies to the printing plant will be enforced without further discussion. . No curtailment of an employee’s right to distribute union literature on nonworking time in nonworking areas is justifiable absent an affirmative showing of special circumstances, such as the maintenance of production or discipline, N.L.R.B. v. Mangurian’s Inc., 5 Cir., 1978, 566 F.2d 463; Patio Foods v. N.L.R.B., 5 Cir., 1969, 415 F.2d 1001; Campbell Soup Company v. N.L.R.B., 5 Cir.," } ]

[ { "docid": "22585257", "title": "", "text": "concurring in the judgment. In this case, the Court of Appeals for the Sixth Circuit found that respondent had demonstrated the special circumstances necessary to overcome the NLRB’s presumption against bans on solicitation, and that there was no substantial evidence to support the Board’s holding to the contrary. The scope of our review of such a Court of Appeals finding is narrowly circumscribed: “ ‘Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.’ ” Beth Israel Hospital v. NLRB, 437 U. S. 483, 507 (1978), quoting Universal Camera Corp. v. NLRB, 340 U. S. 474, 491 (1951). Because I believe that the Court of Appeals “misapprehended or grossly misapplied” the substantial-evidence rule with respect to the cafeteria, gift shop, and first-floor lobbies of Baptist Hospital, but that the .same cannot be said for the patient-floor corridors and sitting rooms, I concur in the judgment of the Court. I As the Court notes, “[t]he Hospital presented no clear evidence of the frequency with which patients use the cafeteria and gift shop, or visit the lobbies on the first floor,” ante, at 786. See App. 11-13, 27, 36-38. In fact, the evidence demonstrated that patients normally remain on floors above the first floor, id., at 20, 28, 35-36, 64; that they must have special permission to leave the floor on which their room is located, or to eat in the cafeteria, id., at 64; Baptist Hospital, Inc., 223 N. L. R. B. 344, 348 (1976); and that only a small number of patients actually use the cafeteria, App. 50, 64; 223 N. L. R. B., at 348. See generally, ante, at 786-787. Given such evidence, the Hospital could not have overcome the Board’s presumption against solicitation bans in nonimme-diate patient-care areas — that is, the Hospital could not have met its affirmative burden to demonstrate that the" }, { "docid": "23663703", "title": "", "text": "65 S.Ct. 982, 928 n.10, 89 L.Ed. 1372 (1945), since the company has articulated no “special circumstances” adequate to overcome the presumption against restrictions on employee distributions. See Beth Israel Hospital v. NLRB, 437 U.S. 483, 492-93, 98 S.Ct. 2463, 2469-2470, 57 L.Ed.2d 370 (1978); Times Publishing Co. v. NLRB, 576 F.2d 1107, 1109 n.2 (5th Cir. 1978); NLRB v. Orleans Mfg. Co., 412 F.2d 94, 96 (2d Cir. 1969). The record also supports reasonable cause to believe Lyons’ discharge violated § 8(a)(1) on the alternative theory that the employer enforced its no-distribution policy in a discriminatory manner. See Head Division, AMF, Inc. v. NLRB, 593 F.2d 972, 977-78 (10th Cir. 1979); Midwest Regional Joint Board v. NLRB, 564 F.2d 434, 446 (D.C.Cir. 1977); Schwarzenbach-Huber Co. v. NLRB, 408 F.2d 236, 256 (2d Cir.), cert. denied., 396 U.S. 960, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969). Prior to the beginning of Local 57’s organizing efforts, the employer apparently permitted such activities as the sale of candy by employees during the lunch period. Such a pattern of past acquiescence supports an inference that the employer’s application of a no-distribution rule to Lyons and other union organizers was designed to interfere with union organizational activities rather than simply to serve plant efficiency. See NLRB v. Montgomery Ward & Co., 554 F.2d 996, 1000 (10th Cir. 1977); NLRB v. Daylin, Inc., 496 F.2d 484, 488 (6th Cir. 1974); SchwarzenbachHuber Co. v. NLRB, supra, 408 F.2d at 256. The May 1,1979 discharge of Sharon Hunter presents a closer question. According to the undisputed evidence, Hunter worked for Richwear for a short period in early February, 1979 and was not recalled until April, 1979, about a month after Local 57 filed a charge alleging that the employer, by laying her off for union activity, had violated § 8(a)(3) of the Act. When Hunter resumed work on April 23, 1979, she was initially assigned to work on the same spooling machine she had operated in February. The next day she was assigned the additional task of placing panties on hangers. Thereafter Hunter and members of the" }, { "docid": "8836120", "title": "", "text": "COLEMAN, Circuit Judge. Times Publishing Company (Company) seeks review of an order of the National Labor Relations Board (NLRB) which found that the Company had promulgated, maintained and given effect to overly broad rules against employee distribution and solicitation in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C., § 158(a)(1). The Board decision is reported, 231 N.L.R.B. No. 44, and the Board cross petitions for enforcement of its order. Except as to one facet of the case we enforce the Board order. In its application for review, the Company raises several issues but only one merits discussion, which may be stated as follows: Was the main lobby in the Company’s downtown location (1) a public place in which employee distribution of materials and solicitation may be pursued; or was it (2) a work area in which the Company might limit distribution; or was it (3) a place so nearly like a retail establishment that both distribution and solicitation may be proscribed? The Administrative Law Judge found that the lobby was a work area, a finding which the Board reversed. The Company argues that the location should be characterized as a retail establishment. The Rule posted at the downtown location read as follows: “The conducting of non-company business, such as canvassing, collection of funds, pledges, circulation of petitions, solicitation of memberships or any other similar types of activity are not permitted during the working time of any staffer, or at any time in public areas of the building, such as lobbies and elevators. “The distribution of non-Times Publishing Company literature such as leaflets, letters or other written material by any staffer is not permitted during working time, in working areas cr in public areas within the building.” The Company's Operations The Company is engaged in the publication of newspapers in St. Petersburg, Florida, and maintains two locations, a printing plant on 34th Street and a downtown location housing its business offices. The downtown location consists of an older six-story building with its own lobby and elevators and a more recent five-story addition which houses the main lobby." }, { "docid": "16643169", "title": "", "text": "take place in nonworking areas or, even more restrictively, in break areas, the rule barred nonworking time solicitation even in areas not involved with the care of patients. Thus, the rule covered substantially more than patient-care areas, even giving that term a broad definition. EMMC failed to introduce any evidence justifying the broad no-solicitation rule as necessary to prevent either disruption of patient care or disturbance of patients. Accordingly, we uphold the Board’s conclusion that the no-solicitation rule was overly broad and violative of § 8(a)(1). While practically conceding the facial invalidity of its rule, EMMC takes issue with the Board’s determination that it unlawfully enforced a prohibition on solicitation in the second floor lobby of the hospital. On March 10, 1977 two off-duty registered nurses were soliciting signatures for MSNA membership and dues check-off cards in the public cafeteria on the second floor. When later that day they moved out in the lobby adjoining the cafeteria, the hospital’s director of personnel asked them to leave the premises, invoking what he termed the hospital’s no-solicitation “policy”. The nurses complied. The hospital contends that the second floor lobby was properly declared off limits to protect friends of patients and “members of the patients’ families anxiously awaiting results of surgery” from the potentially disturbing sight of union solicitation. According to the hospital the interest of tranquility of friends and relatives, as well as pa tients, is to be balanced against the self-organizational rights of employees. As authority for this proposition, EMMC relies on a statement in Justice Blackmun’s concurring opinion in Beth Israel that “the patient and his family ... need a restful, uncluttered, relaxing and helpful atmosphere . . . . ” 437 U.S. at 509, 98 S.Ct. at 2477 (emphasis added), quoted in NLRB v. Baptist Hospital, Inc., 442 U.S. at 783-84, n.12, 99 S.Ct. at 2604-05. EMMC complains that the Board erred by completely ignoring the interests of relatives and friends of patients. We do not agree with this characterization of the Board’s decision. Since the lobby was not a patient-care area and the nurses expelled for soliciting there" }, { "docid": "5998106", "title": "", "text": "the care of the patient or atmosphere of patient care will not be tolerated.” Rec., vol. Ill, at 1431 (emphasis in original). It is well established that “the right of employees to self-organize and bargain collectively ... necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 491, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370 (1978) (footnote omitted). Pursuant to this observation, the Supreme Court has approved the Board’s presumption that restrictions on employee solicitation during non-working time violate section 8(a)(1) of the Act unless the employer justifies them by showing special circumstances which make the rule necessary. Id. at 492-93, 98 S.Ct. at 2469-2470; see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Hospitals, of course, “are not factories or mines or assembly plants.” Beth Israel, 437 U.S. at 509, 98 S.Ct. at 2477 (Blackmun, J., concurring). Thus, in the context of health care facilities, the Board has modified its presumption to permit prohibitions on solicitation in “strictly patient care areas, such as the patients’ rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas.” Id. at 495, 98 S.Ct. at 2470 (quoting St. John’s Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150, 1150 (1976)). Other than in immediate patient care areas, however, the presumption continues to apply. Under the Board’s approach, the hospital bears the burden of proving that union solicitation outside of immediate patient care areas is likely to adversely affect patients or patient care. NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 781 & n. 11, 99 S.Ct. 2598, 2603 & n. 11, 61 L.Ed.2d 251 (1979). In the case before us, Rule Two’s ban on solicitation “in any area to which patients have access” necessarily encompasses a much broader range of areas than immediate patient care areas. Indeed, the Board found that at least some patients at St. Luke’s had access to virtually every area in the hospital not specifically denied to public use. As such, the Board properly" }, { "docid": "8836124", "title": "", "text": "1976, more than 4,000 people came into the lobby to apply for work. The Status of the Case The Board stated that the Company exception to the Administrative Law Judge’s failure to treat the lobby as a retail store put the status of the downtown lobby before the Board. This necessarily included the proper scope of organizational activity in the area. The Board then proceeded to hold that the facts did not support the conclusion of the Administrative Law Judge that the lobby is a Company working area where all union distribution may be prohibited. We have already described the Company activities carried on in the lobby. In light of the undisputed facts there set forth, we are compelled to hold that a reversal of the findings of the Administrative Law Judge on this point is without substantial support in the record; that, indeed, the evidence clearly demonstrated that the lobby was a Company work area. That, however, does not dispose of the case. The Company insists as a matter of law, in the proper application of the Act, that organizational solicitation in the area would so seriously disrupt customer contact that the Act would permit the prohibition of such activity. In other words, it is argued that in view of the activities customarily taking place in the lobby, it was entitled to be treated the same as a retail establishment or a restaurant, Goldblatt Bros., Inc., 77 N.L.R.B. 1262, 1264 (1948); McDonald’s Corp., 205 N.L.R.B. 404, 408 (1973). The Company says that the main lobby is a customer selling area, analogous to a retail store, and that a blanket ban on solicitation in the lobby was necessary to avoid disruption of its selling function. The Board contends that the Company’s basic function is the publication of news, not selling, and that employee organizational activities will not disrupt the publication of newspapers nor any selling which occurs in the lobby nor the normal function of the lobby as a passageway to other parts of the office complex. The Board submits that the decision as to the proper balance between the" }, { "docid": "16643168", "title": "", "text": "may be accessible to patients. We upheld this presumption as applied to a hospital cafeteria and coffee shop in NLRB v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977), aff’d, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). The Supreme Court in Beth Israel and in NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 787-88, 99 S.Ct. 2598, 2606-07, 61 L.Ed.2d 251 (1979) rejected attacks on the validity of the hospital presumption, while registering serious doubt in Baptist Hospital that the scope of protectible patient-care areas could rationally be thought to exclude areas commonly used by patients, such as corridors and sitting rooms on patient floors. Id. at 788-90, 99 S.Ct. at 2607-08. Under these principles, the EMMC no-solicitation rule was overbroad, and therefore presumptively invalid, in two respects. First, by permitting solicitation only during breaks, and not during other nonworking time, such as before and after work and during lunchtime, the rule did not permit solicitation during the full range of nonworking time. Second, because the rule required that all solicitation take place in nonworking areas or, even more restrictively, in break areas, the rule barred nonworking time solicitation even in areas not involved with the care of patients. Thus, the rule covered substantially more than patient-care areas, even giving that term a broad definition. EMMC failed to introduce any evidence justifying the broad no-solicitation rule as necessary to prevent either disruption of patient care or disturbance of patients. Accordingly, we uphold the Board’s conclusion that the no-solicitation rule was overly broad and violative of § 8(a)(1). While practically conceding the facial invalidity of its rule, EMMC takes issue with the Board’s determination that it unlawfully enforced a prohibition on solicitation in the second floor lobby of the hospital. On March 10, 1977 two off-duty registered nurses were soliciting signatures for MSNA membership and dues check-off cards in the public cafeteria on the second floor. When later that day they moved out in the lobby adjoining the cafeteria, the hospital’s director of personnel asked them to leave the premises, invoking what he termed the hospital’s no-solicitation" }, { "docid": "16643172", "title": "", "text": "general public, immediately adjoining the hospital’s public cafeteria. It is used by people on breaks from conferences in nearby conference rooms, those passing to and from the medical library and by nurses who wait there at shift changes to punch the time clock located off the lobby. Lobby users sit, talk, smoke and sometimes eat. Significantly, though not mentioned in EMMC’s brief there is a separate waiting room for the use of persons awaiting the results of surgery. These persons use the lobby only when the special surgery waiting room is filled to capacity, and even on those occasions physicians confer about serious problems with waiting family and friends in the relative privacy of the surgery waiting room. There was testimony that some persons waiting for outpatient services used the second floor lobby “rather than wait downstairs” but this was the only reference to patient use of the area. EMMC does not contend that outpatient use of the lobby is frequent or regular or that, on the day in question, there was an overflow from the surgery waiting room. On this record, there is substantial evidence supporting the Board’s decision that EMMC failed to justify its ban on solicitation in the second floor lobby “as necessary to avoid disruption of health-care operations or disturbance of patients”, NLRB v. Beth Israel Hospital, 437 U.S. at 507, 98 S.Ct. 2477; NLRB v. Baptist Hospital, Inc., 442 U.S. at 781, 99 S.Ct. at 2603. We do not decide, nor do we interpret the Board to hold, that it is unlawful for a hospital to create a special enclave to protect the privacy of conferences between patients’ families and physicians from potentially intrusive conduct of all sorts. Nothing approaching such privacy interests was implicated here. The fact that even under overflow conditions, physicians may conduct their conferences with family members in the surgery waiting room, removes any significant possibility of disruption of health-care operations by union solicitation in the lobby. Accordingly, we affirm the Board’s holding that EMMC unlawfully enforced its rule. We also enforce that part of the Board’s order, not challenged by" }, { "docid": "23664913", "title": "", "text": "in law.” Accord NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). In Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978), the Court cautioned “[t]he judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those .criteria, the Board’s application of the rule, if supported by substantial evidence on the record as a whole, must be enforced.” (footnote and citations omitted). On the other side are cases such as NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960), where the Court declined the opportunity to expound a detailed delineation of the respective functions of court and agency, and said, “We think the Board’s resolution of the issues here amounted not to a resolution of interests which the Act left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer, but they must be sure the question has been asked.” In American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), the Court refused to yield to the Board’s finding of an unfair labor practice when an employer “locked out” its employees after a bargaining impasse had been reached. The Court was “unable to find that any fair construction of the provisions relied on by the Board in this case can support its finding of an unfair labor practice. Indeed, the role assumed by the Board in this area is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon.” Id. at 318, 85 S.Ct. at 967. See also NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980). Further citations to cases on the topic would only serve to confirm Judge Friendly’s" }, { "docid": "8836123", "title": "", "text": "the far wall is the entrance to the personnel office. The lobby is open to the public and is frequented by approximately 250 to 300 people a day. About 400 classified advertisements a week are placed in person at the classified ad window and paid for at the cashier’s window. Also sold at the cashier’s window are such items as back and current issues of the newspaper, photographs, reams of newsprint, flags, almanacs and reprints of books and magazines published by the Company. In addition, members of the public come into the lobby to bring news items such as wedding announcements, to tour the building and to receive various publications distributed by the Company as a public service. The receptionist directs these individuals to their destinations and makes available various forms they may wish to fill out. Employees frequently use the lobby and front elevators, but more often they use an entry at the back of the building. Visitors with business in’other parts of the building also use the lobby and front elevators, and, in 1976, more than 4,000 people came into the lobby to apply for work. The Status of the Case The Board stated that the Company exception to the Administrative Law Judge’s failure to treat the lobby as a retail store put the status of the downtown lobby before the Board. This necessarily included the proper scope of organizational activity in the area. The Board then proceeded to hold that the facts did not support the conclusion of the Administrative Law Judge that the lobby is a Company working area where all union distribution may be prohibited. We have already described the Company activities carried on in the lobby. In light of the undisputed facts there set forth, we are compelled to hold that a reversal of the findings of the Administrative Law Judge on this point is without substantial support in the record; that, indeed, the evidence clearly demonstrated that the lobby was a Company work area. That, however, does not dispose of the case. The Company insists as a matter of law, in the proper" }, { "docid": "16643170", "title": "", "text": "“policy”. The nurses complied. The hospital contends that the second floor lobby was properly declared off limits to protect friends of patients and “members of the patients’ families anxiously awaiting results of surgery” from the potentially disturbing sight of union solicitation. According to the hospital the interest of tranquility of friends and relatives, as well as pa tients, is to be balanced against the self-organizational rights of employees. As authority for this proposition, EMMC relies on a statement in Justice Blackmun’s concurring opinion in Beth Israel that “the patient and his family ... need a restful, uncluttered, relaxing and helpful atmosphere . . . . ” 437 U.S. at 509, 98 S.Ct. at 2477 (emphasis added), quoted in NLRB v. Baptist Hospital, Inc., 442 U.S. at 783-84, n.12, 99 S.Ct. at 2604-05. EMMC complains that the Board erred by completely ignoring the interests of relatives and friends of patients. We do not agree with this characterization of the Board’s decision. Since the lobby was not a patient-care area and the nurses expelled for soliciting there were off-duty, the hospital bore the burden of proof on the validity of the expulsion. EMMC could have justified its action by showing that solicitation was likely either to disturb patients or disrupt health care services. NLRB v. Baptist Hospital, Inc., 442 U.S. at 781, n. 11. The Board observed, we believe correctly, that if visitors were accorded the same protection as patients, virtually every publicly accessible part of the hospital would be off-limits for solicitation, including cafeteria and lobby areas such as those held open to solicitation in Beth Israel and Baptist Hospital. The Board did not rely on this observation alone, however, but went on to examine in detail the character of the second floor lobby “focussing particularly upon the delivery of health care services at EMMC as that may involve the lobby area at issue....”, the second criterion recognized in Baptist Hospital. The Board concluded, based on the following facts, that EMMC had not demonstrated an adverse effect on health care operations. The lobby is a large waiting area open to the" }, { "docid": "23663715", "title": "", "text": "charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred . . ., for appropriate temporary relief or restraining order. Upon the filing of any such petition the court . . shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper. . We have considered and rejected as insubstantial the employer’s claim that the Board unduly delayed in seeking § 10(j) relief. . According to the testimony of the employee witnesses, Lyons was told she was “fired” when she continued to distribute union literature on company premises during the lunch break despite warnings from Richard and Pau line Israel not to continue doing so. The employer, however, contends that Lyons “constructively quit” her job. This view is supported by Pauline Israel’s testimony that she had warned Lyons that she (Lyons) would be fired if she continued to distribute the materials after the lunch break ended and work resumed (“on my time”), and that it was Lyons who then announced of her own accord that she had been fired and proceeded to walk out. Richard Israel also denied having fired Lyons. He testified that he had done no more than warn Lyons that she would be fired if she continued yelling at his mother, Pauline. Of course, it remains for the Board to determine which description of events is most credible. We decide only that the record, for purposes of this § 10(j) proceeding, provides adequate support for the Regional Director’s allegation that Lyons was unlawfully discharged. . The Board’s presumption against restrictions on employee distributions is limited to distributions during non-working time in non-working areas Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615 (1962); see Beth Israel Hospital v. NLRB, 437 U.S. 483, 493 n.10, 98 S.Ct. 2463, 2469 n.10, 57 L.Ed.2d 370 (1978). In this case, Lyons was distributing materials in the production area of the plant. We cannot conclude, however, that this circumstance" }, { "docid": "13169849", "title": "", "text": "the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. 424 U.S. at 522, 96 S.Ct. at 1037 (citations omitted). The Beth Israel case presents an example of the sensitive attention which the Supreme Court reserves for the particular context of a case involving solicitation activity. Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). Although nonemployees were not involved, the Court regarded as central to the balance struck under the Act that the context was a hospital and that patients were present in the cafeteria where solicitation and distribution occurred. Nonetheless, the Court invalidated the hospital’s no-solicitation rule as applied to the cafeteria, emphasizing again that it was the Board’s task to evaluate the relative strength of the interests involved and to balance them. 437 U.S. at 503, 98 S.Ct. at 2474. In the case at hand, the Board considered the various interests involved and mandated an accommodation which would allow solicitation by nonemployees in the Buffeteria when such organizational activity was carried on in a nondisruptive fashion consistent with the normal use of the restaurant. Our task is limited to reviewing whether the record contains substantial evidence to support those findings. Beth Israel Hospital v. NLRB, 437 U.S. at 507, 98 S.Ct. at 2476, citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). We conclude that it does. On the one hand, the weight of the employees’ interest here is substantially increased by the fact that there are major obstacles to access to them by union organizers. The setting is a large shopping mall surrounded by highways. Presumably it would be difficult to follow the employees to their homes. The employees usually eat on the premises and have only a one-half hour break for lunch; the nearest restaurant facilities are a ten minute walk. The union was not given a" }, { "docid": "23663702", "title": "", "text": "see Danielson v. International Organization of Masters, 521 F.2d 747, 751 (2d Cir. 1975); Humphrey v. International Longshoremen’s Association, 548 F.2d 494, 497 (4th Cir. 1977). The issues on this appeal are whether the District Court’s reasonable cause determination was correct and whether the Court abused its discretion in fashioning equitable relief. See Danielson v. Joint Board of Coat, Suit & Allied Garment Workers’ Union, 494 F.2d 1230, 1244 & n.22 (2d Cir. 1974). We will consider separately the reinstatement requirement and the bargaining order. A. Reinstatement of Rosetta Lyons and Sharon Hunter. The administrative record fully supports a finding of reasonable cause to believe that the March 27,1979 discharge of Rosetta Lyons violated § 8(a)(1) of the Act. Several employees testified that Lyons was discharged when she failed to heed the instructions of agents of the employer to cease distributing union literature on company premises during the lunch break. If this testimony is credited, Lyons’ discharge almost certainly constituted an unfair labor practice, see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10, 65 S.Ct. 982, 928 n.10, 89 L.Ed. 1372 (1945), since the company has articulated no “special circumstances” adequate to overcome the presumption against restrictions on employee distributions. See Beth Israel Hospital v. NLRB, 437 U.S. 483, 492-93, 98 S.Ct. 2463, 2469-2470, 57 L.Ed.2d 370 (1978); Times Publishing Co. v. NLRB, 576 F.2d 1107, 1109 n.2 (5th Cir. 1978); NLRB v. Orleans Mfg. Co., 412 F.2d 94, 96 (2d Cir. 1969). The record also supports reasonable cause to believe Lyons’ discharge violated § 8(a)(1) on the alternative theory that the employer enforced its no-distribution policy in a discriminatory manner. See Head Division, AMF, Inc. v. NLRB, 593 F.2d 972, 977-78 (10th Cir. 1979); Midwest Regional Joint Board v. NLRB, 564 F.2d 434, 446 (D.C.Cir. 1977); Schwarzenbach-Huber Co. v. NLRB, 408 F.2d 236, 256 (2d Cir.), cert. denied., 396 U.S. 960, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969). Prior to the beginning of Local 57’s organizing efforts, the employer apparently permitted such activities as the sale of candy by employees during the lunch period. Such a pattern" }, { "docid": "8838201", "title": "", "text": "whole, and we reverse the portion of the Board’s order which granted her reinstatement and back pay. The decision of the Board is ENFORCED with respect to its cease and desist order covering the no solicitation rule. The finding that the hospital threatened Bridget Kelly is ENFORCED. The Board’s finding that Kelly was unlawfully discharged violating sections 8(a)(1) and (8) is ENFORCED, but the case is REMANDED to the Board for consideration of the issues on survival of the remedy. The Board’s order of reinstatement and back pay for Carolyn Stern is REVERSED. . Although an employee is “paid to work” during lunch breaks and rest periods, this time is considered non-working time during which an employer may not impose a nonsolicitation rule. N. L. R. B. v. Mueller Brass, 501 F.2d 680 (5 Cir. 1974); N. L. R. B. v. Monarch Tool Co., 210 F.2d 183 (6 Cir.), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109 (1954). . The hospital also argued that a special circumstances exception to the general prohibition against broad no solicitation rules was warranted in its case. We recognize that the intermingling of patients and employees in patient access areas within a hospital is generally considered a special circumstance that operates to dispel a presumption of illegality associated with restrictions on solicitations. St. John’s Hospital & School of Nursing v. N. L. R. B., 557 F.2d 1368 (10 Cir. 1977); N. L. R. B. v. Beth Israel Hospital, 554 F.2d 477 (1st Cir.) aff’d, -U.S.-, 98 S.Ct. 2463, 57 L.Ed.2d 370, (1978). Recent cases involving no solicitation rules in a hospital context have focused upon whether or not union solicitation should be permitted in areas that are not strictly for patient treatment but to which patients do have access. Clearly the needs of hospital patients should be afforded considerable weight in striking the appropriate balance between the undisputed right of the hospital employees to engage in union activity and the duty of the hospital to maintain its services without disruption of patient care. Unlike the rules in St. John’s Hospital, supra, or" }, { "docid": "22585256", "title": "", "text": "any basis ... for doubting the accuracy of the [testimony] that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery.” Ante, at 784. The union’s interest in membership solicitation in the public area of the Hospital above the first floor was severely undercut by the availability of abundant alternative areas for such union activity. Whatever doubts there may be as to the adverse effects on patients should be resolved in favor of their protection. I would not elevate the interests of unions or employees, whose highest duty is to patients, to a higher plane than that of the patients. The evidence described by the Court, ante, at 786-787, demonstrates that the gift shop on the first floor is maintained primarily for the accommodation of visitors who wish to purchase articles for patients and is not a “patient-care” area; as in Beth Israel, supra, the first floor cafeteria is not a primarily patient-care area. Mr. Justice Brennan, with whom Mr. Justice White and Mr. Justice Marshall join, concurring in the judgment. In this case, the Court of Appeals for the Sixth Circuit found that respondent had demonstrated the special circumstances necessary to overcome the NLRB’s presumption against bans on solicitation, and that there was no substantial evidence to support the Board’s holding to the contrary. The scope of our review of such a Court of Appeals finding is narrowly circumscribed: “ ‘Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.’ ” Beth Israel Hospital v. NLRB, 437 U. S. 483, 507 (1978), quoting Universal Camera Corp. v. NLRB, 340 U. S. 474, 491 (1951). Because I believe that the Court of Appeals “misapprehended or grossly misapplied” the substantial-evidence rule with respect to the cafeteria, gift shop, and first-floor lobbies of Baptist Hospital, but that the .same cannot" }, { "docid": "16643173", "title": "", "text": "the surgery waiting room. On this record, there is substantial evidence supporting the Board’s decision that EMMC failed to justify its ban on solicitation in the second floor lobby “as necessary to avoid disruption of health-care operations or disturbance of patients”, NLRB v. Beth Israel Hospital, 437 U.S. at 507, 98 S.Ct. 2477; NLRB v. Baptist Hospital, Inc., 442 U.S. at 781, 99 S.Ct. at 2603. We do not decide, nor do we interpret the Board to hold, that it is unlawful for a hospital to create a special enclave to protect the privacy of conferences between patients’ families and physicians from potentially intrusive conduct of all sorts. Nothing approaching such privacy interests was implicated here. The fact that even under overflow conditions, physicians may conduct their conferences with family members in the surgery waiting room, removes any significant possibility of disruption of health-care operations by union solicitation in the lobby. Accordingly, we affirm the Board’s holding that EMMC unlawfully enforced its rule. We also enforce that part of the Board’s order, not challenged by EMMC, holding that the hospital violated § 8(a)(1) by promulgating an overly broad “no access” rule one week after the lobby incident. The rule forbade off-duty employees to be anywhere on the hospital premises more than one half hour before or after work, without making allowance for off-duty solicitation in non-working areas. See Tri-County Medical Center, Inc., 222 N.L.R.B. 1089 (1976). II. INTERROGATION The ALJ and the Board determined that the hospital violated § 8(a)(1) through its agent by asking two job applicants about their union sentiments. The uncontradicted testimony was that sometime in May 1977, Louise Moreshead, head of the nursing department, interviewed Gerald and Wilma Laird, then students at the EMMC school of nursing, for positions as graduate nurses. Gerald Laird testified that during the course of the interview, Moreshead asked “what we felt about the union, our opinions and what we knew about it.” When Gerald replied noncommittally, Moreshead responded that although she sympathized with the nurses’ concerns, she did not agree “with the way they were going about it.” At the" }, { "docid": "16643167", "title": "", "text": "areas”, “non-work areas”. Solicitation during working time or by non-employees was flatly prohibited. The general principle applied by the Board in solicitation cases, approved in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1954), is that a rule against employee solicitation during the work time is presumptively valid, while a rule restricting employee solicitation during nonworking time is presumptively invalid. Non working time restrictions may be upheld only when the employer demonstrates “special circumstances” making the rule necessary to maintain production or discipline. The Board has modified this general approach with regard to hospitals, to accommodate the special need of patients for a tranquil environment. The Board’s rule as to hospitals, first announced in St. John’s Hospital & School of Nursing, 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (10th Cir. 1977), allows employer restriction of nonworking time solicitation in “immediate” patient-care areas but maintains the presumption against nonworking time restrictions in other areas, such as cafeterias and lounges, even though they may be accessible to patients. We upheld this presumption as applied to a hospital cafeteria and coffee shop in NLRB v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977), aff’d, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). The Supreme Court in Beth Israel and in NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 787-88, 99 S.Ct. 2598, 2606-07, 61 L.Ed.2d 251 (1979) rejected attacks on the validity of the hospital presumption, while registering serious doubt in Baptist Hospital that the scope of protectible patient-care areas could rationally be thought to exclude areas commonly used by patients, such as corridors and sitting rooms on patient floors. Id. at 788-90, 99 S.Ct. at 2607-08. Under these principles, the EMMC no-solicitation rule was overbroad, and therefore presumptively invalid, in two respects. First, by permitting solicitation only during breaks, and not during other nonworking time, such as before and after work and during lunchtime, the rule did not permit solicitation during the full range of nonworking time. Second, because the rule required that all solicitation" }, { "docid": "13169848", "title": "", "text": "and workable result. And it is important to remember that the standard ultimately being applied is that of the National Labor Relations Act, which Babcock & Wilcox articulates but cannot easily and precisely define for all places and all times. The Supreme Court’s post-Babcock & Wilcox cases involving union solicitation indicate that our approach to Babcock & Wilcox is correct. Thus, in Hudgens v. NLRB, 424 U.S. 507, 540, 96 S.Ct. 1029, 1046, 47 L.Ed.2d 196 (1976), the Court reiterated that the accommodation of § 7 rights and property rights was the core of Babcock & Wilcox, as, indeed, of the National Labor Relations Act itself, and that the proper accommodation of the two rights depended in each instance upon the context and the organizational activity involved: The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other.” The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. 424 U.S. at 522, 96 S.Ct. at 1037 (citations omitted). The Beth Israel case presents an example of the sensitive attention which the Supreme Court reserves for the particular context of a case involving solicitation activity. Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). Although nonemployees were not involved, the Court regarded as central to the balance struck under the Act that the context was a hospital and that patients were present in the cafeteria where solicitation and distribution occurred. Nonetheless, the Court invalidated the hospital’s no-solicitation rule as applied to the cafeteria, emphasizing again that it was the Board’s task to evaluate the relative strength of the interests involved and to balance them. 437 U.S. at 503, 98 S.Ct. at 2474. In the case" }, { "docid": "5588233", "title": "", "text": "communicate [effectively] with one another regarding self-organization at the jobsite.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 491, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370 (1978). This general right, however, is not without limitation. The Supreme Court has held that it is the duty of the Board to work out a balance between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society. Beth Israel, 437 U.S. at 492, 98 S.Ct. at 2469 (quoting Republic Aviation, 324 U.S. at 797-98, 65 S.Ct. at 985-86). C. Meijer’s First Argument Meijer’s first argument is that this issue is governed by our opinion in Cleveland Real Estate Partners v. NLRB (“CREP\"), 95 F.3d 457 (6th Cir.1996). Meijer strongly urges us to adopt the reasoning and result of this Court’s decision in CREP. In CREP, we held that it was permissible for the owner of a private retail shopping mall to preclude union ‘representatives from distributing handbills directed at shoppers in order to discourage them from patronizing non-union retailers, even though the owner permitted handbilling and solicitation by non-union per-mittees in the mall. Id. at 461-62. We reversed the Board’s determination that the company had engaged in unlawful discrimination against non-employee union representatives by prohibiting them from handbilling in a shopping mall which it managed, while permitting solicitation and hand-billing by the Girl Scouts, the Knights of Columbus, political candidates, and school children selling candy, among others. The Court held that the “term ‘discrimination’ as used [in this context] means favoring one union over another, or allowing employer-related information while barring similar union-related information.” Id. at 465. The Court noted three factors peculiar to that case, which led it to a narrow definition of discrimination. First, as a general" } ]

[ { "docid": "22464687", "title": "", "text": "writ of coram nobis is available only “when a § 2255 motion is unavailable — generally, when the petitioner has served his sentence completely and thus is no longer ‘in custody\" as required for § 2255 relief.” Id. In the case at bar, although § 2255 relief is no longer available to him, Mr. Johnson remains a prisoner in federal custody. A prisoner in custody is barred from seeking a writ of error coram nobis. See United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997) (holding that coram nobis relief is not available to a prisoner in custody); United States v. Bush, 888 F.2d 1145, 1147 (7th Cir.1989) (same); United States v. Little, 608 F.2d 296, 299 n. 5 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1053, 62 L.Ed.2d 777 (1980) (“Coram nobis lies only where the petitioner has completed his [or her] sentence and is no longer in federal custody, is serving a sentence for a subsequent state conviction, or has not begun serving the federal sentence under attack”); United States v. Brown, 413 F.2d 878, 879 (9th Cir.1969) (holding coram nobis relief unavailable to a prisoner in custody), cert. denied, 397 U.S. 947, 90 S.Ct. 965, 25 L.Ed.2d 127 (1970). Johnson’s petition therefore fails. Mr. Johnson contends that even if he is not entitled to coram nobis relief, we should remand the case to the district court for an evidentiary hearing on the challenges to the trial court’s jurisdiction, the prosecutor’s authority, and venue. We see no basis for doing so. If Johnson is procedurally barred, there is no point in taking evidence to determine whether relief might be warranted if it were not procedurally barred. Moreover, the district court addressed all of Johnson’s stated grounds for relief and properly found them to be without merit. AFFIRMED. . Johnson was barred from seeking habeas corpus relief under 28 U.S.C. § 2255, the traditional avenue for collaterally attacking federal convictions, because of the one-year limitations period prescribed in the Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-32, 110 Stat. 1214 (1996). . We are strengthened" } ]

[ { "docid": "3609718", "title": "", "text": "Coram No-bis under the All Writs Act,” along with a petition for a writ of error coram nobis in the District Court in August 2010. He claimed that two police officers involved in his case fabricated evidence against him and gave perjured testimony. He based his claim on news reports that the officers were indicted in 2007 on charges related to the handling of property seized by the local drug task force, including tampering with public records and perjury. Rhines contended that the prosecution “suppressed” the pending criminal cases against the officers, which would have “exculpated” him, and that his trial counsel was ineffective for failing to discover that these officers were under indictment. The District Court dismissed Rhines’ petition because he presented no basis for extraordinary relief, holding that coram nobis relief is not available to a petitioner who remains in custody and that the error Rhines complained of was not of the type within the ambit of the writ. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de novo legal issues arising from the denial of coram nobis relief. See, e.g., United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001). If no substantial question is presented by this appeal, we may summarily affirm the District Court’s order on any ground supported by the record. See 3d Cir. L.A.R. 27.4; IOP 10.6; Tourseher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Coram nobis is an extraordinary remedy that “has traditionally been used to attack [federal] convictions with continuing consequences when the petitioner is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Baptiste, 223 F.3d 188, 189 (3d Cir.2000) (per curiam). A court’s jurisdiction to grant such relief is of limited scope, and the standard for obtaining it is more stringent than that applicable on direct appeal or in habeas corpus. See United States v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989). Errors which could be remedied by a new trial do not usually come within the writ. Id. Rather, the error must be fundamental and" }, { "docid": "7457767", "title": "", "text": "PER CURIAM. Joan M. Noske and her brother were convicted of tax evasion in a joint proceeding. Noske appealed her 78-month sentence, and we affirmed. See United States v. Noske, 117 F.3d 1053 (8th Cir.1997). After her pro se 28 U.S.C. § 2255 petition failed, Noske’s brother obtained habeas relief resulting in a reduction of his sentence to 78 months, the same sentence that Noske received. Because § 2255 precludes Noske from filing a second petition under that statute attacking her sentence, Noske seeks reconsideration of her sentence again through a writ of error coram nobis under the All Writs Act, see 28 U.S.C. § 1651. She argues the sentencing court indicated at sentencing that Noske was less culpable than her brother, and her sentence should be reduced to effectuate the court’s original intent. The district court denied Noske’s petition. Citing United States v. Kindle, 88 F.3d 535 (8th Cir.1996) (per curiam), the district court held “a writ of coram nobis is not available to an individual who is currently in federal custody.” On appeal, Noske contends “co-ram nobis relief can be available to a person in federal custody where that person has an otherwise recognized constitutional claim that she cannot present through no dereliction of her own.” We conclude co-ram nobis relief is unavailable to Noske. First, Noske is in federal custody, and our case law clearly precludes eoram nobis relief to a federal prisoner. See id. at 536; Zabel v. United States Attorney, 829 F.2d 15, 17 (8th Cir.1987). Second, “[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996). Here, the appropriate means for Noske to challenge her sentence is § 2255. The statute is “controlling,” even though she cannot obtain the relief she seeks because the statute prevents her from filing a second § 2255 petition. See United" }, { "docid": "22950044", "title": "", "text": "“will issue only to correct errors resulting in a complete miscarriage of justice.” Jimenez, 91 F.3d at 768 (footnote omitted). Our court has held that ineffective assistance of counsel, if proven, can be grounds for coram nobis relief. See Castro, 26 F.3d at 559-60 (reversing denial of coram nobis petition and remanding for determination of whether counsel rendered ineffective assistance by failing to advise Castro of the availability of a judicial rec ommendation against deportation or to request same from the sentencing court). IV Because the district court erroneously determined that it lacked jurisdiction to consider Esogbue’s petition, its order dismissing the petition is VACATED, and the case is REMANDED for further proceedings. We express no opinion on the merits of Esogbue’s petition. We note, however, that the writ of coram nobis is an extraordinary remedy to correct errors “of the most fundamental character.” United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954). “Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. 247. A writ of coram nobis “will issue only when no other remedy is available and when ‘sound reasons exist[] for failure to seek appropriate earlier relief.’ ” United States v. Dyer, 136 F.3d at 422 (quoting Morgan, 346 U.S. at 512, 74 S.Ct. 247). Thus, in order to establish his entitlement to the writ, Esogbue must, inter alia, provide “sound reasons” for his failure to seek permission to assert the claims alleged in his coram nobis petition in a successive petition under 28 U.S.C. § 2255 while he was still in custody. An assertion that he would have been unable to satisfy the stringent standards for filing a successive § 2255 motion while he was in custody is not such a “sound reason.” See Godoski v. United States, 304 F.3d 761, 763 (7th Cir.2002) (“coram nobis is a common-law writ, and it is entirely inappropriate for the judiciary to invoke the common law" }, { "docid": "12014699", "title": "", "text": "petitioners have failed to make the requisite showing of actual innocence that would support consideration of their untimely § 2255 petitions on the merits. The petitioners claim that they are actually innocent because their conduct did not violate § 1014, as it was written when they were charged, since § 1014 did not criminalize filing false reports with the FSA. The petitioners raise a purely legal argument concerning an issue of statutory interpretation. The petitioners do not present any new evidence to show their “factual innocence.” They have failed, therefore, to present a colorable claim of actual innocence. D. Coram Nobis While this appeal was pending, eight of the petitioners completed their sentences and they argue that they are now entitled to coram nobis relief. This issue was not raised in the district court because the petitioners were in custody for purposes of § 2255 at the time they filed their habeas petitions. In the interest of judicial economy, we will address the coram nobis claim on appeal to avoid the futility of requiring the petitioners to file subsequent writs of error coram nobis in the district court. “Pursuant to the All Writs Act, federal courts have the authority to grant writs that were traditionally available at common law.” United States v. Sawyer, 239 F.3d 31, 37 (1st Cir.2001) (citing 28 U.S.C. § 1651). “A writ of error coram nobis is a common-law writ through which a rendering court, subject to certain conditions, may correct its own judgment on the basis of some patent error affecting the validity or regularity of that judgment.” Trenkler v. United States, 536 F.3d 85, 90, n. 2 (1st Cir.2008). It is “ordinarily available only to a criminal defendant who is no longer in custody.” Id. at 98. To obtain relief under a writ of error coram nobis, the “petitioner must 1) explain her failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” Sawyer, 239 F.3d at 38. As to the first requirement, it has" }, { "docid": "12014700", "title": "", "text": "petitioners to file subsequent writs of error coram nobis in the district court. “Pursuant to the All Writs Act, federal courts have the authority to grant writs that were traditionally available at common law.” United States v. Sawyer, 239 F.3d 31, 37 (1st Cir.2001) (citing 28 U.S.C. § 1651). “A writ of error coram nobis is a common-law writ through which a rendering court, subject to certain conditions, may correct its own judgment on the basis of some patent error affecting the validity or regularity of that judgment.” Trenkler v. United States, 536 F.3d 85, 90, n. 2 (1st Cir.2008). It is “ordinarily available only to a criminal defendant who is no longer in custody.” Id. at 98. To obtain relief under a writ of error coram nobis, the “petitioner must 1) explain her failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” Sawyer, 239 F.3d at 38. As to the first requirement, it has been recognized that “[a] petitioner may not resort to co-ram nobis merely because he has failed to meet the AEDPA’s gatekeeping requirements.” Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.2002); see also Trenkler, 536 F.3d at 98-99 (holding that petitioner’s inability to bring § 2255 petition due to “his own tardiness and AED-PA’s gatekeeping provisions” did not entitle him to seek refuge in writ of coram nobis). “To rule otherwise would reduce AEDPA’s gatekeeping provisions to a ‘meaningless gesture.’ ” Trenkler, 536 F.3d at 99 (quoting United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999)). We hold that the petitioners fail to meet the first requirement of the coram nobis standard, and we therefore express no opinion as to the second and third requirements. As discussed above, the petitioners failed to demonstrate that their § 2255 petitions could not have been brought within the one-year limitations period. They may not now resort to coram nobis relief to avoid § 2255’s deadlines. On a final note, to the extent that the petitioners rely" }, { "docid": "22374596", "title": "", "text": "to issue the writ under the All Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 506-07, 511-12, 74 S.Ct. 247, 98 L.Ed. 248 (1954). To warrant coram nobis relief, Matus-Leva must establish that: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of a fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987). Because these requirements are conjunctive, failure to meet any one of them is fatal. See e.g. United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.1991). Matus-Leva cannot overcome the first hurdle because he is still subject to supervised release, and thus he is in “custody.” Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997). A person in custody may seek relief pursuant to 28 U.S.C. § 2255. Because the more usual remedy of a habeas petition is available, the writ of error coram nobis is not. Matus-Leva’s argument that a § 2255 petition is not really available to him because it is time barred under the Antiterrorism and Effective Death Penalty Act, is unavailing. A petitioner may not resort to coram nobis merely because he has failed to meet the AEDPA’s gatekeep-ing requirements. To hold otherwise would circumvent the AEDPA’s overall purpose of expediting the presentation of claims in federal court and enable prisoners to bypass the limitations and successive petitions provisions. Predictably, appellate courts, including ours, have consistently barred individuals in custody from seeking a writ of error coram nobis. United States v. Brown, 413 F.2d 878, 879 (9th Cir.1969) {“Coram No-bis is not available, since he is still in custody.”); see also, United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001); United States v. Barrett, 178 F.3d 34, 54 (1st Cir.1999); United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997). Accordingly, we AFFIRM the district court’s dismissal" }, { "docid": "22425672", "title": "", "text": "criminal history category of III. The career-offender enhancement elevated his offense level to 37 and his criminal history category to VI. See U.S.S.G. § 4B1.1(A) (1995). . As described below, Poole did not become aware until 2002 that this order was signed, granting him the relief he sought. . A second or successive motion under § 2255 must be denied unless certified “by a panel of the appropriate court of appeals to contain—(1) newly discovered evidence ...; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h). . As explained in more detail below, § 2255 petitions are generally filed with the original sentencing court, while § 2241 petitions are generally filed in the district of confinement. . The savings clause allows a § 2241 habeas petition to proceed if \"the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention.” § 2255(e). . Fourth Circuit precedent has likewise not extended the reach of the savings clause to those petitioners challenging only their sentence. See In re Jones, 226 F.3d 328, 333-34 (4th Cir.2000) (outlining the circumstances in which \" § 2255 is inadequate and ineffective to test the legality of a conviction ”) (emphasis added). . Specifically, the motion sought a writ of coram nobis, one of several common law writs historically available to those seeking post-judgment relief. See Black's Law Dictionary 362 (8th ed.2004) (defining coram nobis as \"[a] writ of error directed to a court for review of its own judgment and predicated on alleged errors of fact”). The writ of coram nobis and several historical analogues have since been collected and codified in Federal Rule of Civil Procedure 60(b). See Fed. R.Civ.P. 60(b) cmt. to 1946 amendments. Rule 60(b) now acts as a catch-all, providing for relief from a final judgment in a number of circumstances, including when \"applying it prospectively is no longer equitable,” Fed. R.Civ.P. 60(b)(5) (2003), or for \"any other reason that justifies relief,” Fed.R.Civ.P. 60(b)(6) (2003); see also 28 U.S.C. §" }, { "docid": "22950045", "title": "", "text": "should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. 247. A writ of coram nobis “will issue only when no other remedy is available and when ‘sound reasons exist[] for failure to seek appropriate earlier relief.’ ” United States v. Dyer, 136 F.3d at 422 (quoting Morgan, 346 U.S. at 512, 74 S.Ct. 247). Thus, in order to establish his entitlement to the writ, Esogbue must, inter alia, provide “sound reasons” for his failure to seek permission to assert the claims alleged in his coram nobis petition in a successive petition under 28 U.S.C. § 2255 while he was still in custody. An assertion that he would have been unable to satisfy the stringent standards for filing a successive § 2255 motion while he was in custody is not such a “sound reason.” See Godoski v. United States, 304 F.3d 761, 763 (7th Cir.2002) (“coram nobis is a common-law writ, and it is entirely inappropriate for the judiciary to invoke the common law to override limitations enacted by Congress, such as the period of limitations in § 2255”), cert. denied, 537 U.S. 1211, 123 S.Ct. 1304, 154 L.Ed.2d 1059 (2003); Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.) (“A petitioner may not resort to coram nobis merely because he has failed to meet the AEDPA’s gatekeeping requirements. To hold otherwise would circumvent the AEDPA’s overall purpose of expediting the presentation of claims in federal court and enable prisoners to bypass the limitations and successive petitions provisions.”), cert. denied, 537 U.S. 1022, 123 S.Ct. 544, 154 L.Ed.2d 431 (2002). Here, for example, if Esogbue’s assertions amount to hardly more than regurgitation of the claims he has already presented in his § 2255 petition, that has been considered and dismissed, or claims that he reasonably could have raised in that petition, it cannot be said that he has made the necessary showing of a “complete miscarriage of justice.” VACATED and REMANDED." }, { "docid": "22794227", "title": "", "text": "proceeded to the substance of his appeal. Clough, 959 F.2d at 186. The heart of Torres’s argument is that the district court violated his “due process rights” and “abused its discretion” by recasting his petition for “writ of coram no-bis and/or writ audita querela” as a § 2255 petition. (Aplt. Br. at 10.) If we were to review his petition under the legal standards for coram nobis and audita querela, he alleges, we would conclude that his sentence and conviction are unconstitutional in the wake of the Supreme Court’s Apprendi decision. At its core, Torres’s argument centers around the alleged fail ure of the government to prove beyond a reasonable doubt that he possessed “D-methamphetamine.” (Aplt. Br. at 11.) We find Torres’s claims unpersuasive for two reasons. First, assuming for the sake of argument that the district court mistakenly reclassified his petition, Torres cannot obtain the relief he desires through coram nobis or audita querela writs. As courts have explained, a prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis. See, e.g., United States v. Carpenter, 24 Fed.Appx. 899, 903 (10th Cir.2001) (unpublished) (citing United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001)). Similarly, a writ of audita querela is “not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.” Tavares v. Mass., 59 F.Supp.2d 152, 155 (D.Mass.1999); see also United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2000) (“We agree with our sister circuits that a federal prisoner may not challenge a conviction or a sentence by way of a petition for a writ of audita querela when that challenge is cognizable under § 2255 ... ”); United States v. Johnson, 962 F.2d 579, 582 (7th Cir.1992) (explaining that audita querela may “not be invoked by a defendant challenging the legality of his sentence who could otherwise raise that challenge under 28 U.S.C. § 2255”). Alternatively, we do not believe that the district court acted incorrectly by rechar-acterizing Torres’s motion as a § 2255" }, { "docid": "23039184", "title": "", "text": "petitioner would fail adequately to state a claim for coram nobis relief. The record in this case contains no evidence that petitioner has sought and been denied licensure as a securities broker, that he has ever been so employed in the past, or that he could obtain such employment but for his conviction. His claim is purely speculative, and as such we do not think it sufficient to justify invoking the “extraordinary remedy,” Morgan, 346 U.S. at 511, 74 S.Ct. 247, of coram nobis relief. To meet the burden of demonstrating that he suffers from a continuing legal consequence, a petitioner must at least point to “a concrete threat that an erroneous conviction’s lingering disabilities will cause serious harm.... [I]t is not enough to raise purely speculative harms.” United States v. Craig, 907 F.2d 653, 658 (7th Cir.1990); see also Hager v. United States, 993 F.2d 4, 5 (1st Cir.1993) (petitioner must demonstrate “significant collateral consequences from the judgment”) (emphasis added). The requirement of continuing legal consequences would lose all force if speculative harms of the sort petitioner relies upon in this ease were sufficient to state a claim for coram nobis relief. Accordingly, we hold that the district court did not abuse its discretion in denying the coram nobis petition, and we affirm the judgment of the district court. . The All Writs Act provides that \"[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). . Williams was a habeas proceeding pursuant to 28 U.S.C. § 2255. “Because of the similarities between coram nobis proceedings and § 2255 proceedings, the § 2255 procedure often is applied by analogy in coram nobis cases.” Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996). . The Courts of Appeals for the Ninth Circuit and the Fourth Circuit apparently assume that any conviction necessarily leads to continuing legal consequences for purposes of coram nobis relief. See United States v. Walgren, 885 F.2d 1417, 1421-22 (9th" }, { "docid": "22056864", "title": "", "text": "Court. In April 1999 Baptiste filed the instant petition for writ of error coram nobis in yet another attempt to have his guidelines claims (the Amendment 487 claim, the challenge to his leadership role, and the claim that the amount of drugs attributed to him was not reasonably foreseeable) and ineffective assistance of counsel at sentencing claim heard. The District Court denied the motion, and this appeal followed. We will summarily affirm the order denying the coram nobis petition. Although a writ of error coram nobis is available in federal courts in criminal matters, see 28 U.S.C. § 1651(a), coram nobis has traditionally been used to attack convictions with continuing consequences when the petitioner is no longer “in custody” for purposes of 28 U.S.C. § 2255. See, e.g., United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir.1989). It is an extraordinary remedy and a court’s jurisdiction to grant relief is of limited scope. There is no basis here for coram nobis relief, because Baptiste is still in custody. Baptiste argues that second collateral challenges to a conviction and sentence, like his, are now barred under the Antiterrorism and Effective Death Penalty Act, see 28 U.S.C. §§ 2255 and 2244 (“AEDPA”), and therefore coram nobis relief should be available. However, the procedural barriers erected by AEDPA are not sufficient to enable a petitioner to resort to coram nobis merely because he/ she is unable to meet AEDPA’s gatekeep-ing requirements. The safety valve provided under 28 U.S.C. § 2255 is narrow. We explained in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997), that it is a complete miscarriage of justice when the AEDPA prohibition against successive section 2255 motions makes this collateral remedy unavailable altogether to someone with no earlier opportunity to bring his/ her claim. Id. at 251. That is not Baptiste’s situation. He had an earlier opportunity to raise all of his claims (including the Amendment 487 claim) in his 1997 section 2255 motion. We will therefore affirm the order of the District Court denying the petition for writ of error coram nobis pursuant to Third Circuit LAR 27.4" }, { "docid": "3609719", "title": "", "text": "review de novo legal issues arising from the denial of coram nobis relief. See, e.g., United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001). If no substantial question is presented by this appeal, we may summarily affirm the District Court’s order on any ground supported by the record. See 3d Cir. L.A.R. 27.4; IOP 10.6; Tourseher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Coram nobis is an extraordinary remedy that “has traditionally been used to attack [federal] convictions with continuing consequences when the petitioner is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Baptiste, 223 F.3d 188, 189 (3d Cir.2000) (per curiam). A court’s jurisdiction to grant such relief is of limited scope, and the standard for obtaining it is more stringent than that applicable on direct appeal or in habeas corpus. See United States v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989). Errors which could be remedied by a new trial do not usually come within the writ. Id. Rather, the error must be fundamental and “go to the jurisdiction of the trial court, thus rendering the trial itself invalid.” Id. When an alternative remedy is available, a writ of error coram nobis may not issue. See United States v. Denedo, - U.S. -, 129 S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009). We agree that Rhines is not entitled to coram nobis relief. First, Rhines is still in prison, whereas coram nobis is usually reserved for situations where the petitioner is no longer serving his sentence or “in custody.” See Baptiste, 223 F.3d at 189. Rhines contends that being “in custody” is not a “categorical preclusion” to coram nobis, relying on two decisions where coram nobis relief was granted to prisoners. See United States v. Dawes, 895 F.2d 1581 (10th Cir.1990); Bruce v. Ebert, 748 F.Supp.2d 569 (W.D.Va.2010). These decisions are not binding upon us and have no bearing upon the standard in this Circuit that writs of error coram nobis are generally not available to those “in custody.” See, e.g., Stoneman, 870 F.2d at 105-06. We also agree that Rhines" }, { "docid": "13620538", "title": "", "text": "It is well settled in this circuit, however, that the Sykes claim is waived if it is not raised. Smith v. Estelle, 602 F.2d 694, 708 n. 19 (5th Cir.1979); Washington v. Watkins, 655 F.2d 1346, 1368 (5th Cir.1981). In the case at bar, the government did not raise the procedural bar, but, rather, recognized that the defendants had cause for failing to object to the intangible rights theory. Consistent therewith, the district court considered only the merits of the petitions. The appellate function in habeas cases, as in others, is limited to reviewing that which has been presented to the district judge. Baker v. Estelle, 711 F.2d 44 (5th Cir.1983) (“Since there is no evidence that ... the district court denied the petition on the procedural ground, we refuse to consider it on review.”). Marcel-lo’s claim is to be considered on the merits. We conclude that he is entitled to relief under section 2255. Roemer brought his petition for cor-am nobis relief under the All Writs Statute, 28 U.S.C. § 1651. Coram nobis is appropriate only where the petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal convictions and that the challenged error is of sufficient magnitude to justify the extraordinary relief. Puente v. United States, 676 F.2d 141 (5th Cir.1982); United States v. Hay, 702 F.2d 572 (5th Cir.1983). In United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the Supreme Court held that coram nobis should issue to correct only errors which result in a complete miscarriage of justice. An error of “the most fundamental character” must have occurred and no other remedy may be available. Id. at 512, 74 S.Ct. at 253. On appeal the government does not challenge the propriety of the use of this writ. In this case, Roemer appealed his case at each stage in the proceedings and, being denied all relief, served his sentence. The only meaningful remedy available to him is that provided by the writ of coram nobis. McNally makes clear that Roemer was indicted and convicted under the" }, { "docid": "3609720", "title": "", "text": "“go to the jurisdiction of the trial court, thus rendering the trial itself invalid.” Id. When an alternative remedy is available, a writ of error coram nobis may not issue. See United States v. Denedo, - U.S. -, 129 S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009). We agree that Rhines is not entitled to coram nobis relief. First, Rhines is still in prison, whereas coram nobis is usually reserved for situations where the petitioner is no longer serving his sentence or “in custody.” See Baptiste, 223 F.3d at 189. Rhines contends that being “in custody” is not a “categorical preclusion” to coram nobis, relying on two decisions where coram nobis relief was granted to prisoners. See United States v. Dawes, 895 F.2d 1581 (10th Cir.1990); Bruce v. Ebert, 748 F.Supp.2d 569 (W.D.Va.2010). These decisions are not binding upon us and have no bearing upon the standard in this Circuit that writs of error coram nobis are generally not available to those “in custody.” See, e.g., Stoneman, 870 F.2d at 105-06. We also agree that Rhines has not asserted a fundamental error that rendered his trial invalid. He claims that he was denied the opportunity to impeach the officers with the fact of their indictment and that his counsel was ineffective for failing to discover this. The officers were indicted about five years after Rhines’ trial and, to the extent we can discern from the material Rhines submitted, for actions apparently unrelated to Rhines’ case. Rhines has offered nothing but speculation that the 2007 charges against the officers prove that they fabricated evidence and gave perjured testimony at his trial or that impeachment would have resulted in a “not guilty” verdict despite the other evidence against him. Furthermore, we note that Rhines has already attempted to raise these claims in a second motion under 28 U.S.C. § 2255, which we denied him authorization to file (C.A. 10-2438). Rhines may not resort to a writ of error coram nobis simply because he cannot meet the standards for filing a second or successive § 2255 motion. See Baptiste, 223 F.3d at 189-90. There" }, { "docid": "22546076", "title": "", "text": "relief is inadequate or ineffective. See Caravalho, 177 F.3d at 1179 (“[W]e agree with the district court that the mere fact Caravalho is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate.”); Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (noting that section 2255’s substantive and proce dural barriers by themselves do not.establish that section 2255 is inadequate or ineffective). Similarly, a section 2255 motion “cannot become ‘inadequate or ineffective,’ thus permitting the use of [section] 2241, merely because a petitioner cannot meet the AEDPA ‘second or successive’ requirements.” United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); see also Tolliver, 211 F.3d at 878; In re Davenport, 147 F.3d 605, 608 (7th Cir.1998); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997). To hold otherwise would flout Congress’s obvious intent to give meaning to these procedural requirements. A ruling that the section 2255 remedy was inadequate or ineffective, such that a petitioner could invoke section 2241, simply because the petitioner’s prior section 2255 motion was unsuccessful, or barred, or because he could not file another motion, would render those procedural requirements a nullity and defy Congress’s clear attempt to limit successive habeas petitions. Other circuits have indicated that a defendant may invoke the “savings clause” exception only when the Constitution demands it, or where otherwise Congress would violate the Suspension Clause by imposing a conviction or- sentence without allowing for section 2241 relief. See In re Davenport, 147 F.3d at 609 (noting that section 2241 relief may. be available to challenge a conviction or sentence in order that the prisoner “cannot complain that the limitations in [section] 2255 suspended whatever constitutional right he might have had, under the suspension clause or conceivably under the due process clause, to be allowed to seek habeas corpus”). Cf. Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 1229-30, 51 L.Ed.2d 411 (1977) (presence of similar “savings clause” in District of Columbia analogue to section 2255 defeats Suspension" }, { "docid": "22845714", "title": "", "text": "requirement because Kwan could have filed a § 2255 motion while he was still in custody but failed to do so. In other words, the government argues that Kwan cannot be eligible for coram nobis relief, even though § 2255 relief is clearly not available to him now, because a “more usual remedy was available to him” then. Other courts have not interpreted this threshold requirement as the government would have us do. See, e.g., United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (finding petitioner met threshold requirement for coram nobis relief even though petitioner could have raised denial of counsel claim by filing § 2255 motion while incarcerated); United States v. Esogbue, 357 F.3d 532, 534 (5th Cir.2004) (same). Moreover, the government’s argument asks us to adopt a subtle change in the language of the threshold requirement (from “is unavailable” to “was unavailable”) that would cause a great change in its meaning (from “unavailable now” to “unavailable ever ”). If the mere fact that a coram nobis petitioner could have raised his claim while in custody was sufficient to bar coram nobis eligibility, then there would be no need for the second coram nobis requirement, which requires the petitioner to establish that “valid reasons exist for not attacking the conviction earlier.” Taken together, the first and second requirements make clear that a petitioner is not barred from seeking coram nobis relief simply because he could have sought relief while in custody. Instead, he is given the opportunity to explain why he did not seek relief while in custody, and he is only barred from coram nobis eligibility if he fails to show that he had valid reasons for delaying. B. “Because a petition for writ of error coram nobis is a collateral attack on a criminal conviction, the time for filing a petition is not subject to a specific statute of limitations.” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.1994); see also Morgan, 346 U.S. at 507, 74 S.Ct. 247 (explaining that coram nobis petitions are allowed “without limitation" }, { "docid": "22374595", "title": "", "text": "writ of error coram nobis. The district court denied the petition on January 31, 2001, holding that “[t]he error, if any is purely procedural and not due to any fault of the government or the Court in proceeding against defendant as an adult after finding he was an adult. It was not error as to a fundamental right of the defendant.” On February 5, 2001, Matus-Leva was sentenced to sixty-three months imprisonment, a term that was enhanced based on his 1998 conviction. Matus-Leva filed a timely notice of appeal on February 6, 2001. STANDARD OF REVIEW We review de novo the district court’s denial of a petition for writ of error coram nobis. United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989). We may affirm on any ground finding support in the record. Laboa v. Calderon, 224 F.3d 972, 981 n. 7 (9th Cir.2000). DISCUSSION Coram nobis is an extraordinary writ, used only to review errors of the most fundamental character. The United States Supreme Court has held that district courts have the power to issue the writ under the All Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 506-07, 511-12, 74 S.Ct. 247, 98 L.Ed. 248 (1954). To warrant coram nobis relief, Matus-Leva must establish that: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of a fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987). Because these requirements are conjunctive, failure to meet any one of them is fatal. See e.g. United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.1991). Matus-Leva cannot overcome the first hurdle because he is still subject to supervised release, and thus he is in “custody.” Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997). A person in custody may seek relief pursuant to 28 U.S.C. §" }, { "docid": "7457768", "title": "", "text": "Noske contends “co-ram nobis relief can be available to a person in federal custody where that person has an otherwise recognized constitutional claim that she cannot present through no dereliction of her own.” We conclude co-ram nobis relief is unavailable to Noske. First, Noske is in federal custody, and our case law clearly precludes eoram nobis relief to a federal prisoner. See id. at 536; Zabel v. United States Attorney, 829 F.2d 15, 17 (8th Cir.1987). Second, “[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996). Here, the appropriate means for Noske to challenge her sentence is § 2255. The statute is “controlling,” even though she cannot obtain the relief she seeks because the statute prevents her from filing a second § 2255 petition. See United States v. Barrett, 178 F.3d 34, 55 (1st Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000). “The writ of coram nobis may not be used to circumvent the clear congressional directive embodied in the ‘second or successive’ provisions of § 2255.” ’ Id, Third, even if § 2255 were not controlling, Noske does not appear to meet the requirements for issuance of coram nobis relief. Specifically, we do not believe she has shown an error “of the most fundamental character” occurred. See United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954). We thus affirm the district court’s denial of Noske’s application for a writ of error coram nobis." }, { "docid": "8144755", "title": "", "text": "have pled guilty if she had been made aware of the immigration consequences of such a plea. On March 31, 2010, while Chaidez’s motion was pending before the district court, the Supreme Court issued its decision in Padilla. In a thoughtful opinion, Judge Gottschall acknowledged that this case presents a close call. She concluded that Padilla did not announce a new rule for Teague purposes, but rather was an application of the Court’s holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Having concluded that Padilla applied to Chaidez’s case, the district court considered the merits of her coram nobis petition. The court granted the petition and vacated Chaidez’s conviction. The government appeals the district court’s underlying ruling regarding the retroactive effect of Padilla. II. Discussion The writ of coram nobis, available under the All Writs Act, 28 U.S.C. § 1651(a), provides a method for collaterally attacking a criminal conviction when a defendant is not in custody, and thus cannot proceed under 28 U.S.C. § 2255. United States v. Folak, 865 F.2d 110, 112-13 (7th Cir.1988). The writ is an extraordinary remedy, allowed only where collateral relief is necessary to address an ongoing civil disability resulting from a conviction. Godoski v. United States, 304 F.3d 761, 762 (7th Cir.2002). Because a writ of error coram nobis affords the same general relief as a writ of habeas corpus, Howard v. United States, 962 F.2d 651, 653 (7th Cir.1992), we proceed as we would in a habeas case. See United States v. Mandanici, 205 F.3d 519, 527 (2d Cir.2000) (applying Teague in a case involving a coram nobis petition); United States v. Swindall, 107 F.3d 831, 834 (11th Cir.1997) (same). Our review is de novo. In Padilla, the Court considered the petitioner’s claim that his counsel provided ineffective assistance by erroneously advising him that pleading guilty to a drug distribution charge would not impact his immigration status. The Kentucky Supreme Court had rejected Padilla’s claim, concluding that advice regarding the collateral consequences of a guilty plea (“i.e., those matters not within the sentencing authority of the" }, { "docid": "22950041", "title": "", "text": "no longer in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the conviction, and that the challenged error is of sufficient magnitude to justify the extraordinary relief.” Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996); see also United States v. Peter, 310 F.3d 709, 712 (11th Cir.2002) (“A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief under 28 U.S.C. § 2255.”). Although the district court did not assign reasons for its conclusion that it lacked jurisdiction, it is likely that the court was persuaded by the Government’s argument that Esogbue’s motion must be dismissed for lack of jurisdiction because he did not seek permission from this Court to file a successive § 2255 motion. However, this argument is flawed, because Esogbue was no longer in custody when he sought coram nobis relief; therefore, the alternative legal remedy of a successive § 2255 motion was not available to him at that time. The Supreme Court has held that a movant is not “in custody” under a conviction for the purpose of § 2254 relief where the sentence imposed for that conviction has fully expired. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Maleng’s analysis applies equally when a movant is no longer in federal custody for the purpose of § 2255 relief where the sentence imposed for that conviction has expired. See Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); see also United States v. Truesdale, 211 F.3d 898, 903 (5th Cir.2000) (“a § 2255 motion is made by a person in federal custody and a petition for a writ of error coram nobis is filed by a person who has been released”); United States v. Dyer, 136 F.3d 417, 422 (5th Cir.1998) (writ of coram nobis “has been used as an avenue of collateral attack when the petitioner has" } ]

[ { "docid": "22659874", "title": "", "text": "to Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909), and like cases. Gibbs involved a state claim that arose out of the same transaction as the federal law claim that conferred federal jurisdiction. The majority apparently reads Gibbs and Siler together as mandating decision of the state law claim without regard to the frailty of the federal claim on which federal jurisdiction rests. See ante, at 547, 549-550. In other words, the majority opinion appears to be saying that a federal constitutional claim as marginal as the one at issue here is capable of supporting pendent federal jurisdiction over a state claim and, indeed, that the state claim is to be decided to the exclusion of the federal issue. As I view it, that is a particularly erroneous interpretation of the pendent jurisdiction doctrine. That reading would broaden federal question jurisdiction to encompass matters of state law whenever an imaginative litigant can think up a federal claim, no matter how insubstantial, that is related to the transaction giving rise to the state claim. This extension of Gibbs is quite unnecessary, since we are not confronted with a case where the pendent claim is a matter of state law. The Court’s dictum could nevertheless prompt other courts to follow it. In view of this potential mischief, I repeat a quotation from Gibbs relied on by my Brother Rehnquist which indicates how far the Court has departed from the rationale of that 1966 precedent: “[R]ecognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” 383 U. S., at 727. The correct reading of Gibbs, as a matter of common sense and in light of deeply rooted notions of federalism, is that the federal claim must have more than a glimmer of" } ]

[ { "docid": "22989927", "title": "", "text": "risk of loss of rights beyond the possibility, in Astor-Honor and Leather’s Best, that the federal court would misread state law. A quite different case is presented where, as here, dismissal or a stay of the state claims would enable the defendant to have those claims determined by arbitrators rather than by a court. It is true that Gibbs suggests that the determination whether to invoke pendent jurisdiction or not should generally rest in the sound discretion of the district court, see 383 U.S. at 727-728, 86 S.Ct. 1130, 16 L.Ed.2d 218, but the Court used mandatory language in directing that when the federal claims are dismissed before trial, “even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” 383 U.S. at 726, 86 S.Ct. at 1139. Quite apart from the arbitration problem, the flimsy nature of federal claims may call for dismissal of pendent state claims. See McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424 (2 Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 643, 15 L.Ed.2d 539 (1966). In the cautionary part of his opinion in Gibbs, 383 U.S. at 726-727, 86 S.Ct. at 1139, which perhaps is not read enough, Mr. Justice Brennan noted that dismissal of common law claims might be merited if “[p] retrial procedures or even the trial itself . . . reveal a substantial hegemony of state law claims.” The Justice added that “recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” 383 U.S. 727, 86 S.Ct. 1139. If it appears that the federal claims are subject to dismissal under F.R.Civ.P. 12(b)(6) or could be disposed of on a motion for summary judgment under F. R.Civ.P. 56, the court should refrain from exercising pendent jurisdiction absent exceptional" }, { "docid": "3316829", "title": "", "text": "In the instant case several factors suggest that these goals will not be advanced through the exercise of pendent jurisdiction. Nor will the dangers of piecemeal litigation be exacerbated any further by a decision to decline pendent jurisdiction. Regardless of how the Court decides the instant motion, the plaintiffs’ inartful pleading has already produced trifurcated actions in three forums. To the extent that they wish to pursue their claims against the Thruway Authority, the plaintiffs are required to proceed in the New York Court of Claims. If they press their due process claims (which were rejected here) against the City, they must do so in the State Supreme Court, where they have already commenced an action against the City. The admiralty claims will remain in this Court. Other considerations counsel against the exercise of pendent jurisdiction. Plaintiffs’ initial decision to proceed against the City in the state courts may be regarded as tacit recognition of the fact that the bulk of their claims involve local issues to be resolved under well-established principles of state common law. Without at this time considering the merits of their admiralty claims, this Court is mindful of the Supreme Court’s admonition: “ [Recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” Even if plaintiffs’ federal claims are not mere “appendages,” the bulk of their complaint is clearly comprised of state issues. Where the issues raised are peculiarly matters of state law and of state policy, it is appropriate to leave their resolution to state tribunals. Finally, even if this Court were to exercise its pendent jurisdiction, it would be required by considerations of comity and efficiency to stay its decision until the resolution of the prior state court action. Under all of these circumstances, the Court declines" }, { "docid": "22659848", "title": "", "text": "the constitutional claim, the dissenters would have the District Court dismiss the Supremacy Clause (“statutory”) issue, convene a three-judge court, and reject the constitutional claim, all of this, apparently, as an exercise of the discretion which the District Court, under Mine Workers v. Gibbs, 383 U. S. 715 (1966), is claimed to have over the pendent federal claim. But Gibbs was oriented to state law claims pendent to federal claims conferring jurisdiction on the District Court. Pendent jurisdiction over state claims was described as a doctrine of discretion not to be routinely exercised without considering the advantages of judicial economy, convenience, and fairness to litigants. For, “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” Id., at 726 (footnote omitted). In light of the dissent’s treatment of Gibbs, several observations are appropriate. First, it is evident from Gibbs that pendent state law claims are not always, or even almost always, to be dismissed and not adjudicated. On the contrary, given advantages of economy and convenience and no unfairness to litigants, Gibbs contemplates adjudication of these claims. Second, it would reasonably follow that other considerations may warrant adjudication rather than dismissal of pendent state claims. In Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909) the Court held that the state issues should be decided first and because these claims were dispositive, federal questions need not be reached: “Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.” Id., at 193. Siler is not an oddity. The Court has characteristically dealt" }, { "docid": "18354399", "title": "", "text": "to raise sua sponte regardless of whether or not it is addressed by the parties. Where, as here, the Court is alleged to have pendent jurisdiction over state law causes of action by reason of related federal claims, the exercise of pendent jurisdiction after dismissal of the federal claims is a matter addressed to the discretion of the court. While the Court is mindful of the fact that four trial days were consumed in the conduct of the trial, and that dismissal of the pendent claims results in a waste of that judicial effort, it is of the view that with the tremendous increase of litigation in the federal courts, involving cases that properly place demands upon its limited judicial resources, cases that do not belong here should not be tried here. This is especially true where a litigant has asserted unmerited federal claims in a purposeful effort to obtain federal jurisdiction. Such efforts should be discouraged. This case from its inception presented largely state common law claims, and the action should have been commenced in that forum. The expressed preference of Putnam’s counsel that the Court dispose of the state claims on the motion for a directed verdict or, in the event of denial of the motion, submit them to the jury is understandable, but other considerations are pertinent. To allow the pendent claims to be decided here would simply serve to encourage a practice which imposes a substantial burden on the limited resources of the federal courts. As the Supreme Court has said, “recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case”; and, as our Court of Appeals has noted, “[e]ven where substantial time and resources have been expended in the trial of an action in federal court, pendent state claims must be dismissed if it later is determined that there never existed a federal claim sufficient to invoke the jurisdiction of the federal court.” Plaintiffs’ federal claims having been" }, { "docid": "7179736", "title": "", "text": "several years before his claims are set for trial. Although we sympathize with Mr. Davis’s frustration, his arguments do not show an abuse of discretion by the district court. In its United Mine Workers decision, the Court considered many of the contentions implicit in Davis’s argument: The question of power [to decide pendent state claims] will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited.... [Recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966). Thus, while the passage of time is one factor favoring Davis’s argument, it is by no means determinative. [A] federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only statelaw claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. Carnegie-Mellon Univ. v. Cohill, — U.S. -, 108 S.Ct. 614, 618-19," }, { "docid": "18779092", "title": "", "text": "S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Doe v. Board on Professional Responsibility, 717 F.2d 1424, 1427-28 & n.4 (D.C.Cir. 1983) (per curiam). If a district court has power to adjudicate a pendent claim, the court must then engage in a second inquiry to determine whether to exercise its discretion to decide the local claim. See, e.g., United Mine Workers v. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Doe v. Board on Professional Responsibility, 717 F.2d at 1428. In the instant case, the District Court never engaged in this two-part analysis because the parties assumed that Harley’s challenge arose under federal law. All parties treated jurisdiction as dependent on 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). See, e.g., Amended Complaint at 3-4. Although the issue of pendent jurisdiction arose for the first time on appeal, we conclude that no purpose would be served in remanding to the District Court to permit it to exercise its discretion in the first instance. We find that Article III power to adjudicate Harley’s local law claim clearly exists. Harley’s equal protection challenge was substantial enough to confer subject matter jurisdiction, see Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 772 (D.C.Cir.1982), and his local claim derives from a common nu cleus of operative fact. We also find that the factors which ordinarily guide a district court in deciding whether to exercise pendent jurisdiction counsel toward its exercise in this case. Considerations of judicial economy clearly indicate that this pendent claim should be decided along with the federal claims. All parties have litigated the federal and pendent claims in tandem. This is not a case in which the federal claims have been resolved at an early stage in the litigation and only local claims remain. Moreover, we find that the local law issue can be decided by this court without any additional judicial proceedings, since Harley’s challenge raises a purely legal question. The repeal of section 6(b)(6) by the 1985 amendments to the No-Fault Insurance Act makes these considerations of judicial economy especially compelling. We see no point to further" }, { "docid": "669819", "title": "", "text": "to be accorded the plaintiff, and that the tenure hearing procedures and the tenure hearing itself lacked due process. Plaintiff originally brought this action under 42 U.S.C. § 1983, with jurisdiction under 28 U.S.C. § 1343(3), (4). A three-judge district court was convened pursuant to 28 U.S.C. § 2281. Plaintiff argues in motion I that this court should exercise its discretion and decide the state law issue under the pendent jurisdiction doctrine. The parameters of the court’s discretion under the pendent jurisdiction doctrine are far from precise. But, for reasons stated below, this court declines to review the legality of the amended regulations. Numerous factors influence a court in considering a pendent jurisdiction question. There must exist a federal claim of sufficient weight to give the court jurisdiction and both the state and federal claims must be based on essentially the same facts. The claims must be so related that they present the court with one constitutional “ease.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, [86 S.Ct. 1130, 16 L.Ed.2d 218] (1966). Other factors to consider are judicial economy and convenience and fairness to litigants. But, even if these factors are present, the decision is still discretionary with the court. Gibbs, at 726, 86 S. Ct. 1130. In this case plaintiffs claim in motion I is not truly pendent to a constitutional claim. The question presented by it, though related to plaintiff’s original action, is a by-product of that ease. In the original action, plaintiff argued that § 3020-a was unconstitutional because of intrinsic due process shortcomings in the provided procedures. And in motion II, plaintiff argues that there are still constitutional defects in the procedures themselves. But the state law issue presents a separate question — whether the dismissal procedures were properly amended under state law. This does not present this court with one constitutional “case.” See Gibbs, supra. In footnote 4 to the three-judge court decision, notice was taken of the then pending Supreme Court ruling in Arnett v. Kennedy. In that case the discharge procedures for federal competitive service employees under the Lloyd-La Follette Act," }, { "docid": "17394552", "title": "", "text": "insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. There may, on the other hand, be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. In the present case, for example, the allowable scope of the state claim implicates the federal doctrine of pre-emption; while this interrelationship does not create statutory federal question jurisdiction, Louisville & N. R. Co. v. Mottley, 211 U.S. 149 [29 S.Ct. 42, 53 L.Ed. 126], its existence is relevant to the exercise of discretion. Finally, there may be reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial, Fed.Rule Civ.Proe. 42 (b). If so, jurisdiction should ordinarily be refused. The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited. For example, it may appear that the plaintiff was well aware of the nature of his proofs and the relative importance of his claims; recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the" }, { "docid": "22659897", "title": "", "text": "question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action.” (Emphasis in original.) The Court in Mine Workers v. Gibbs, 383 U. S., at 727, also stated: “[Recognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” I also see no reason why federal courts should be required to “tolerate” efforts to impose upon them federal cases which Congress has chosen to leave to the state courts. The portion of the petitioners’ complaint setting forth their equal protection claim states in full: “Said regulation irrationally and invidiously discriminates against plaintiff victims of eviction. No basis exists in law or fact, consistent with the purposes of the Social Security Act, for reducing the level of payments to plaintiffs who are then forced to live far below the subsistence levels provided to all other persons. Said regulation applies a wholty different standard in determining the grant levels of plaintiffs than the income 'resource and exemptions from levy standard, applicable to all other persons in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” 331 F. Supp., at 168. The Court in Dandridge stated: “Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this" }, { "docid": "22650857", "title": "", "text": "such as the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial, Fed. Rule Civ. Proc. 42 (b). If so, jurisdiction should ordinarily be refused. The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited. For example, it may appear that the plaintiff was well aware of the nature of his proofs and the relative importance of his claims; recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law ease. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. We are not prepared to say that in the present case the District Court exceeded its discretion in proceeding to judgment on the state claim. We may assume for purposes of decision that the District Court was correct in its holding that the claim of pressure on Grundy to terminate the employment contract was outside the purview of § 303. Even so, the § 303 claims based on secondary pressures on Grundy relative to the haulage contract and on other coal operators generally were substantial. Although § 303 limited recovery to compensatory damages based on secondary pressures, Teamsters Union v. Morton, supra, and state law allowed both compensatory and punitive damages, and allowed such damages as to both secondary and primary activity, the state and federal claims arose from the same" }, { "docid": "22989928", "title": "", "text": "L.Ed.2d 539 (1966). In the cautionary part of his opinion in Gibbs, 383 U.S. at 726-727, 86 S.Ct. at 1139, which perhaps is not read enough, Mr. Justice Brennan noted that dismissal of common law claims might be merited if “[p] retrial procedures or even the trial itself . . . reveal a substantial hegemony of state law claims.” The Justice added that “recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” 383 U.S. 727, 86 S.Ct. 1139. If it appears that the federal claims are subject to dismissal under F.R.Civ.P. 12(b)(6) or could be disposed of on a motion for summary judgment under F. R.Civ.P. 56, the court should refrain from exercising pendent jurisdiction absent exceptional circumstances. Indeed, this is essential to avoid a result where, as has been happily said, “the dog would be wagged by his tail.” Hart & Wechsler, The Federal Courts and the Federal System 925 (2d ed. 1973). An even greater degree of circumspection is demanded when, as here, exercise of pendent jurisdiction over a state claim will result in the claim being tried to a court rather than to arbitrators. In such cases the federal court normally should stay the trial of the state claims or dismiss them in the absence of any other ground of federal jurisdiction, if properly requested to do so, even when the federal claims cannot be disposed of without a trial. While exceptional circumstances might justify a contrary course, at the moment we cannot think of any. It is with this background that we turn to the instant case, a rather minor fall-out of the Canadian mineral strike by Texas Gulf Sulphur Company [TGS] in April, 1964, which has consumed so much time of the district court—ironically, of Judge Bonsai" }, { "docid": "9982635", "title": "", "text": "document extends the judicial power of the United States to all cases arising under its laws. Thus, there can be no question of the appropriateness of the vesting of power to hear bankruptcy cases in the district courts. Whether a non-core adversary proceeding may also be heard and decided by a district judge is determined by principles of ancillary and/or pendent jurisdiction. In this particular action, where the adversary initially was brought by the debtor on behalf of the estate, the issues are more appropriately characterized as issues of pendent jurisdiction. The doctrine of ancillary and pendent jurisdiction is not a new theory. It is based upon the mandate in Art. Ill § 2 of the Constitution that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made ... to all Cases ... to Controversies ... between Citizens of different States.” In order to invoke the ancillary jurisdiction of a federal court, the plaintiff must first assert a claim that is substantial enough to confer initial jurisdiction over the action. Once jurisdiction is conferred, ancillary jurisdiction enables the court to hear other claims which are so related to the jurisdiction-conferring claim that their determination is necessary to enable the court to properly adjudicate the entire case and avoid piecemeal litigation. Freeman v. Howe, 65 U.S. (24 How.) 450, 16 L.Ed. 749 (1860); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824). Where the original jurisdiction-conferring claim is a federal question claim and the plaintiff has other claims against the defendants which are not based upon federal questions, the power to hear all of the plaintiffs claims is known as pendent jurisdiction. This type of ancillary jurisdiction extends the jurisdiction from the plaintiffs point of view. 32A Am.Jur.2d, Fed. Pract. & Proc. § 1247 (1987). The scope of pendent jurisdiction has been the subject of much litigation. To determine whether it exists, an analysis must be made of the relationship between the principal claim and the pendent claim. The" }, { "docid": "22105692", "title": "", "text": "that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. iH :}: sfc sfc ^ [Even after the pretrial process has been completed and trial commenced,] recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139 (footnotes omitted). Under Gibbs jurisprudence, where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so. Lovell Mfg. v. Export-Import Bank of the United States, 843 F.2d 725 (3d Cir.1988); Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir.1993). Where the original federal jurisdiction claim is proceeding to trial, however, such considerations will normally counsel an exercise of district court jurisdiction over state claims based on the same nucleus of operative facts unless the district court can point to some substantial countervailing consideration. This is the teaching of our opinion in Sparks v. Hershey, 661 F.2d 30 (3d Cir.1981), where the complaint asserted a civil rights claim under § 1983, a state wrongful death claim, and a state survival act claim, all based on the same jailhouse suicide. We there observed: We do not hold that where there is a common nucleus of operative facts, state claims must always be appended to the federal claim; but where, as here, the district court does not set forth a persuasive, reasoned elaboration for dismissing the state claims, we are inclined to believe that the" }, { "docid": "22576600", "title": "", "text": "PELL, Circuit Judge. This interlocutory appeal, taken pursuant to 28 U.S.C. § 1292(b), from the district court’s order denying defendants’ motion to dismiss for lack of subject matter jurisdiction, presents questions of first impression in the construction of 42 U.S.C. § 1985(1). The first count of plaintiff Stern’s complaint purports to state a claim arising under that section, and accordingly asserts jurisdiction under 28 U.S.C. §§ 1331(a) and 1343(1), (2), and (4). The second and third counts allege state law claims, sounding in defamation and malicious interference with Stern’s contract rights, respectively. As to these counts, Stern invokes the jurisdiction of the federal courts under the doctrine of pendent jurisdiction. That doctrine, based on considerations of fairness and judicial economy, recognizes power in the federal courts to resolve a state law claim brought in conjunction with a federal claim where both “derive from a common nucleus of operative fact.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966). Because it is the federal claim that provides the basis for the exercise of pendent jurisdiction, that claim “must have substance sufficient to confer subject matter jurisdiction on the court.” Id. Defendants-appellants do not argue that the district court would lack jurisdiction to resolve all the issues raised in Stern’s complaint if the complaint sufficiently alleged a cause of action under Section 1985(1). Instead they insist that the complaint does not do so; and because it reveals on its face a lack of diversity of parties, there is no available basis for federal jurisdiction. Stern, in response, offers no alternate jurisdictional theories but rests on the claim that his complaint does state a cause of action under Section 1985(1). The sole and dispositive issue presented, then, while jurisdictional in its effect, is simply whether or not the complaint states a claim upon which relief under Section 1985(1) can be granted. In deciding that issue, we proceed under the accepted rule for determining the sufficiency of a complaint, that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt" }, { "docid": "7179735", "title": "", "text": "‘pendent state claims also should be dismissed.’ ” (citing Gibbs)); City of Whittier v. United States Dept. of Justice, 598 F.2d 561, 564 (9th Cir.1979) (“Dismissal of the federal claim before trial warranted dismissal of the City’s state law claim as well.”); Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 261 (9th Cir.1977) (“When a district court dismisses all federal claims prior to trial, it should not retain jurisdiction over pendent state claims.”); accord United States v. Zima, 766 F.2d 1153, 1158 (7th Cir.1985) (collecting cases in support of the statement, “The federal appeals courts in general ... have indicated a strong preference for the dismissal of pendent or ancillary claims whenever the district court disposes of the federal claims prior to trial”). As we understand Davis’s argument, he contends the district court abused its discretion because it dismissed his state claims after 3V2 years of discovery and pretrial wrangling. Davis complains that he has been forced to refile his action in California state court and that he fears it will be several years before his claims are set for trial. Although we sympathize with Mr. Davis’s frustration, his arguments do not show an abuse of discretion by the district court. In its United Mine Workers decision, the Court considered many of the contentions implicit in Davis’s argument: The question of power [to decide pendent state claims] will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited.... [Recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only" }, { "docid": "22650856", "title": "", "text": "justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. There may, on the other hand, be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. In the present case, for example, the allowable scope of the state claim implicates the federal doctrine of pre-emption; while this interrelationship does not create statutory federal question jurisdiction, Louisville & N. R. Co. v. Mottley, 211 U. S. 149, its existence is relevant to the exercise of discretion. Finally, there may be reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial, Fed. Rule Civ. Proc. 42 (b). If so, jurisdiction should ordinarily be refused. The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited. For example, it may appear that the plaintiff was well aware of the nature of his proofs and the relative importance of his claims; recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s" }, { "docid": "17394553", "title": "", "text": "claims for trial, Fed.Rule Civ.Proe. 42 (b). If so, jurisdiction should ordinarily be refused. The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited. For example, it may appear that the plaintiff was well aware of the nature of his proofs and the relative importance of his claims; recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” With the above guidelines in mind, this court is of the opinion that the claim against the City of Charlevoix should be dismissed. In making this determination this court finds, among other things, that the federal participation in this project is minimal (Exhibit B shows that the U. S. grant was $64,250 on a project estimated to be in excess of $1,295,000); that the City of Charlevoix was “compelled” to proceed forward irrespective of where the funds came from; that the State issues substantially predominate in this case, and that the evidence and the exhibits and remedies sought involve strictly state matters. V. MERITS OF CLAIM AGAINST CITY OF CHARLEVOIX While, as pointed out above, this court finds, after reviewing the evidence, that the claim against the government should be dismissed upon the merits and furthermore, that the claim against the City of Charlevoix should be dismissed without prejudice upon defendants’ motions, nevertheless, the" }, { "docid": "3316830", "title": "", "text": "law. Without at this time considering the merits of their admiralty claims, this Court is mindful of the Supreme Court’s admonition: “ [Recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” Even if plaintiffs’ federal claims are not mere “appendages,” the bulk of their complaint is clearly comprised of state issues. Where the issues raised are peculiarly matters of state law and of state policy, it is appropriate to leave their resolution to state tribunals. Finally, even if this Court were to exercise its pendent jurisdiction, it would be required by considerations of comity and efficiency to stay its decision until the resolution of the prior state court action. Under all of these circumstances, the Court declines to exercise its pendent jurisdiction over the state law claims. Accordingly, the first, third, sixth, and eighth causes of action are also dismissed. So ordered. . Kohlasch v. New York State Thruway Auth., 460 F.Supp. 956 (S.D.N.Y.1978). . Much of the Court’s earlier opinion turned on the fact that exclusive jurisdiction of claims against the Thruway Authority lies in the New York Court of Claims. Because the Thruway Authority was entitled to the limited immunity that would have been available to it had it been sued in a state court, state law claims against it could not be heard in federal court. See id. at 959, 962 & n. 26. . Id. at 960-61 & n. 13 (citing cases). . Fifth Ave. Coach Lines, Inc. v. City of New York, 11 N.Y.2d 342, 229 N.Y.S.2d 400, 183 N.E.2d 684 (1962); Application of Mazzone, 281 N.Y. 139, 146, 22 N.E.2d 315 (1939). Cf. Secombe v. Railroad Co., 90 U.S. (23 Wall.) 108, 117-18, 23 L.Ed. 67 (1874). . N.Y. General City Law § 20(2) (McKinney’s 1968);" }, { "docid": "22659896", "title": "", "text": "jurisdiction, as distinguished from merits, is wanting where the claim set forth in the pleading is plainly unsubstantial. The cases have stated the rule in a variety of ways, but all to that effect. . . . And the federal question averred may be plainly unsubstantial either because obviously without merit, or 'because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” 289 U. S., at 105-106. Hurn v. Oursler, 289 U. S. 238, 245-246 (1933): “But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct non-federal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action.” (Emphasis in original.) The Court in Mine Workers v. Gibbs, 383 U. S., at 727, also stated: “[Recognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” I also see no reason why federal courts should be required to “tolerate” efforts to impose upon them" }, { "docid": "22105691", "title": "", "text": "is of particular importance in the present context to note that the “substantially predominates” standard found in § 1367(c)(2) comes directly from the Supreme Court’s opinion in Gibbs and should be understood in that context. The Court there explained the doctrine of pendent jurisdiction as follows: It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justification lies in considerations of juridical economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188]. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. .Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. iH :}: sfc sfc ^ [Even after the pretrial process has been completed and trial commenced,] recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139 (footnotes omitted). Under Gibbs jurisprudence, where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties" } ]

[ { "docid": "23419502", "title": "", "text": "condition prevented her from securing employment. The record indicates that Plaintiff was examined, treated and hospitalized for both conditions as well as for other non-related medical problems intermittently from 1951 through 1968. The Act requires a claimant to establish his inability to engage in substantial gainful activity. Jones v. Celebrezze, 331 F.2d 226 (C.A. 7, 1964). The claimant’s burden is no greater than 862 (D.C.Mo., 1966), aff’d), 374 F.2d 9 proof by a preponderance of the evidence. Whaley v. Gardner, 255 F.Supp. (8 Cir.) Further, the claimant must show that the disability existed prior to the expiration of his insured status, i. e„ by September 30, 1961, in the instant case. Workman v. Celebrezze, 360 F.2d 877 (C.A. 7, 1966). The principal question before us, as it was for the District Court, is whether there was substantial evidence in the record to support the examiner’s determination of non-eligibility; if so, the determination is conclusive. 42 U. S.C. § 405(g); Kartje v. Secretary of Health, Education and Welfare, 359 F. 2d 762 (C.A. 7, 1966). The District Court found that there was substantial support in the evidence for the examiner’s findings and conclusions, and that Plaintiff had not sustained her burden of proof. Having reviewed the record, we are of the same mind as the District Court. The medical evidence adduced at the Plaintiff’s 1968 hearing clearly indicated that she suffered from a debilitating respiratory condition at the time, and that her 1958 back injury had been a severe handicap. However, no show ing was made on the basis of the testimony and medical documents supported by clinical and laboratory diagnosis that these conditions rendered Plaintiff disabled as of September 30, 1961, the date her eligibility for disability benefits terminated. The law requires that a claimant demonstrate his disability within the prescribed period of eligibility, not prior to nor subsequent to the dates in question. Workman, supra. Plaintiff’s collateral' attacks upon the administrative proceedings do not raise issues sufficient to remand her case. The record’s failure to reflect certain notes of a treating physician’s 1967 examination are countered by the inclusion" } ]

[ { "docid": "17582218", "title": "", "text": "(\"The fact that the evidence was cumulative does not render it, ipso facto, ‘unduly repetitious’ as the term is used in the Administrative Procedure Act.... ”). . The 1972 amendments instruct, in relevant part, that the “first sentence of section 413(b) of such Act [codified as 30 U.S.C. § 923(b) ] is amended by inserting before the period at the end thereof the following: but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant's physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” See Federal Coal Mine and Safety Act Amendments, Pub.L. No. 92-303, 86 Stat. 150, 154 (1972). . Elm Grove further contends that the second ALJ erred by failing to find its additional exhibits admissible under the \"good cause” exception to the Evidence-Limiting Rules. See 20 C.F.R. § 725.456(b)(1). Elm Grove raised the good cause exception at the hearing and argued that “[o]ur good cause argument in this case would be that under the Fourth Circuit’s Decision in the Underwood case, they have deemed that all relevant evidence should be considered and, therefore, the Underwood case in this position would triumph over the regulation. Our contention is essentially the regulation is invalid.” J.A. 765. This argument was rejected by both the second ALJ and the BRB. Elm Grove restates this contention in its brief on appeal, asserting that the \"ALJ also erred in his failure to consider the relevant evidence by essentially determining 'relevancy' fails to meet the good cause standard.” Petr.’s Br. 60. If Elm Grove’s contention is correct, good cause exists to permit all evidence that is relevant, and the good cause exception found in § 725.456 would render the" }, { "docid": "22709174", "title": "", "text": "(1972). See n. 12, supra. The Operators frame their argument by saying that the effect of § 413 (b) is to render the rebuttable presumptions of § 411 (c) effectively irrebuttable. But this dressing adds nothing. Once it is determined that the limitation on X-ray evidence is permissible generally, it is irrelevant that the burden of going forward with some rebuttal evidence is thrown upon the operator by a permissible presumption rather than by the claimant’s affirmative factual showing. Our attention has not been directed to any authoritative indications that X-ray evidence of the presence of pneumoconiosis is untrustworthy. Evidence was produced at the Senate hearings showing that in one study “approximately 25 percent of a random sample of some 200 coal miners whose medical records based upon X-ray findings showed no coal-worker’s pneumoconiosis were found on post mortem examination to have the disease.” S. Rep. No. 92-743, supra, at 12. Id., at 9-16; H. R. Rep. No. 92-460, pp. 8-10 (1971). Section 413 (b) directs additionally that “[i]n determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” 30 U. S. C. §923 (b) (1970 ed., Supp. IY). This evidence was brought to the hearings by the Social Security Administration, whose rules the § 413 (b) limitation was designed to overrule, and was credited by the minority of the House Committee on Education and Labor. H. R. Rep. No. 92-460, supra, at 22, 29-30. S. Rep. No. 92-743, supra, at 11. Id., at 12. Similarly, the Conference Report refers to the limitation only as running against “the Secretary.” S. Conf. Rep. No. 92-780, p. 8 (1972); H. R. Conf. Rep. No. 92-1048, p. 8 (1972). It follows from our discussion of the § 411 (c) (4) limitation" }, { "docid": "17582217", "title": "", "text": "28(a)(9)(A) with respect to particular claim triggers abandonment of that claim on appeal). . The Director also maintains in this proceeding that the All Relevant Evidence Provision is not binding on claims filed after 1973. See Fed. Resp't's Br. 11. Fie asserts that this Provision was included in the 1972 amendments to Part B of the Act (pertaining to claims filed with Social Security Administration before December 31, 1973), and that Part C of the Act (pertaining to claims filed with Department of Labor after December 31, 1973) incorporates the 1972 amendments only \"to the extent appropriate.” 30 U.S.C. § 940. We need not reach the merits of the Director’s contention in this respect. Because the Evidence-Limiting Rules are valid and not inconsistent with the Provision, we accept the point that the Provision was incorporated into Part C of the Act for the purposes of this proceeding. . In Underwood, we concluded that the ALJ did not abuse his discretion in admitting the cumulative evidence submitted by Elkay Mining. See Underwood, 105 F.3d at 951 (\"The fact that the evidence was cumulative does not render it, ipso facto, ‘unduly repetitious’ as the term is used in the Administrative Procedure Act.... ”). . The 1972 amendments instruct, in relevant part, that the “first sentence of section 413(b) of such Act [codified as 30 U.S.C. § 923(b) ] is amended by inserting before the period at the end thereof the following: but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant's physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” See Federal Coal Mine and Safety Act Amendments, Pub.L. No. 92-303, 86 Stat. 150, 154 (1972)." }, { "docid": "357838", "title": "", "text": "of a claim or defense. Meeting the initial burden, however, has the effect of shifting the burden of persuasion, or at least the burden of coming forward with rebuttal evidence, onto the opposing party. Id. at 49, 54-58. With these principles in mind, I have examined the statutory and regulatory scheme of the presumption at issue in these appeals. At the outset I note that Congress has mandated that in deciding black lung claims all relevant evidence be considered: In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. 30 U.S.C. § 923(b). The Conference Report, accompanying the 1978 amendments, states that: With respect to a claim filed or pending prior to the promulgation of such [new] regulations such regulations shall not provide more restrictive criteria than those applicable to a claim filed on June 30, 1973, except that in determining claims under such criteria all relevant medical evidence shall be considered in accordance with standards prescribed by the Secretary of Labor and published in the Federal Register. H.R.Rep. No. 864, 95th Cong., 2d Sess., reprinted in [1978] U.S.Code Cong. & Ad. News 237, 308, 309. As pointed out in an article analyzing the legislative history of the interim presumption, “[b]y this [Conference Report] statement, the conferees alerted the Secretary of Labor that he was not to treat the interim presumption as irrebuttable.” Solomons, A Critical Analysis of the Legislative History Surrounding the Black Lung Interim Presumption and a Survey of its Unresolved Issues, 83 W.VA.L.REV. 869, 893 (1981). Thus, by statute, the disposition of a black lung claim must be based on all relevant evidence and the presumption which the Secretary was directed to promulgate must be rebuttable. The statute, however, leaves to the Secretary how" }, { "docid": "4115", "title": "", "text": "prove that her husband’s death was caused by pneumoconiosis. See 20 C.F.R. § 718.205(a). .30 U.S.C. § 921(c)(4) provides in pertinent part: If a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner’s, his widow’s, his child’s, his parent's, his brother’s, his sister’s, or his dependent's claim under this subchapter and it is interpreted as negative with respect to the requirements of paragraph (3) of this subsection, and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable pre sumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumo-coniosis. 30 U.S.C. § 921(c)(4); see also 20 C.F.R. § 718.305(a). This presumption is only applicable for claims brought before January 1, 1982. Id. . 20 C.F.R. § 718.202(a)(4) provides: A determination of the existence of pneu-moconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative X-ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any such finding shall be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories. Such a finding shall be supported by a reasoned medical opinion. 20 C.F.R. § 718.202(a)(4). . Although this appeal comes to us from the Board, it is well settled that our task is to review the judgment of the AU. See Dotson, 846 F.2d at 1137, and cases cited therein. .Mrs. Mitchell argues on appeal that \"Dr. Fox’s diagnosis of chronic obstructive pulmonary disease was sufficient to prove that Mr. Mitchell had pneumoconiosis.” Appellant’s Br. at 32. This argument appears to have merit. In Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 591 (7th Cir.1985), we said that “‘chronic obstructive pulmonary disease,’ ... whether or not technically black lung disease (pneumoconiosis), fits the statutory definition, which is" }, { "docid": "13183839", "title": "", "text": "Weigand’s lung condition was possibly caused by smoking rather than coal mining, the condition was aggravated by coal dust. The defendant’s medical expert, Dr. Charles Peter Brown, a pulmonary disease specialist, concluded that the claimant’s disability resulted entirely from smoking. Brown further testified that negative x-rays formed the basis of his opinion that Weigand’s difficulties were not attributable to coal miners’ pneumoconiosis. The AU ruled that denying the claim on the basis of Dr. Brown’s testimony would be a denial based solely on a negative chest x-ray, in violation of 30 U.S.C. § 923(b). In affirming the AU’s decision, the BRB stated: Because of the Act’s prohibition against denying claims solely on the basis of negative x-rays, 30 U.S.C. § 923(b), negative x-ray evidence alone cannot provide a sufficient basis for distinguishing between disability caused by coal mine employment and disability caused by cigarette smoking. Accordingly, the administrative law judge rationally inferred that a finding of rebuttal based on Dr. Brown’s causation opinion would, in effect, be an impermissible denial of the claim solely due to a negative x-ray. See generally Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797 (7th Cir. 1977). I R.3. Unlike the cases cited in Rosebud’s brief, the doctor’s distinction between coal dust and cigarette causation factors in this action cannot arguably be based upon anything other than the negative x-ray evidence. Dr. Brown plainly states, “I am unable to say that he has coal miner’s pneumoconiosis because of a lack of any findings on his chest x-ray.” (II R.75) He clearly testified that the x-ray evidence was “the basis for my opinion as far as the effect of any possible pneumoconiosis” regardless of any changes in Weigand’s history of coal dust exposure. (II R.88). After reviewing the record, we hold that the BRB correctly found the AU’s decision to be supported by substantial evidence and free from legal error. Kaiser Steel Corp. v. Dir. OWCP, 748 F.2d 1426 (10th Cir. 1984). II. Section 727.203(b)(3) allows an employer to rebut an interim presumption “if the evidence establishes that the total disability or death of" }, { "docid": "22709175", "title": "", "text": "this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” 30 U. S. C. §923 (b) (1970 ed., Supp. IY). This evidence was brought to the hearings by the Social Security Administration, whose rules the § 413 (b) limitation was designed to overrule, and was credited by the minority of the House Committee on Education and Labor. H. R. Rep. No. 92-460, supra, at 22, 29-30. S. Rep. No. 92-743, supra, at 11. Id., at 12. Similarly, the Conference Report refers to the limitation only as running against “the Secretary.” S. Conf. Rep. No. 92-780, p. 8 (1972); H. R. Conf. Rep. No. 92-1048, p. 8 (1972). It follows from our discussion of the § 411 (c) (4) limitation on rebuttal that these regulations cannot stand as authoritative administrative interpretations of the statute itself. But the role of regulations is not merely interpretative; they may instead be designedly creative in a substantive sense, if so authorized. See, e. g., Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), If the regulations promulgated here are to be upheld, it must be in this latter sense. We see no reason to remand the ease to the three-judge District Court for the purpose of determining whether the Operators should be granted leave to amend their complaint to include a statutory and constitutional challenge to the regulations. The three-judge court remanded to a single judge all questions regarding the validity of regulations challenged in the Operators’ complaint, and that portion of the case is pending before a single judge. Any motion for leave to amend the complaint to include a challenge to any additional regulations can be addressed to that single judge. Mr. Justice Powell, concurring in part and concurring in the judgment in part. Appellants" }, { "docid": "357837", "title": "", "text": "stands uncontradicted by like-kind evidence. I cannot agree. Although, as the opinion of Judge Phillips indicates, the Director’s view on this issue is, if reasonable, entitled to judicial deference, I find that the agency’s interpretation renders the regulation internally inconsistent and is plainly erroneous. Moreover, I conclude that the agency’s interpretation-conflicts with congressional intent. Legal presumptions, such as the one at issue in these appeals, are encountered in a variety of civil, criminal and administrative settings. A presumption is raised by a basic fact or facts which, when accepted as true by the factfinder, give rise to a mandatory inference called a presumed fact. Graham C. Lilly, An Introduction to the Law of Evidence, Chapter III, at 49 (1978). “Once the basic [fact or] facts are believed, the resulting presumed fact must be accepted by the trier unless it is rebutted by contravening evidence.” Id. The initial burden of meeting the factual prerequisite for triggering a presumption is distinct from the ultimate burden of convincing the factfinder of the existence of all the essential elements of a claim or defense. Meeting the initial burden, however, has the effect of shifting the burden of persuasion, or at least the burden of coming forward with rebuttal evidence, onto the opposing party. Id. at 49, 54-58. With these principles in mind, I have examined the statutory and regulatory scheme of the presumption at issue in these appeals. At the outset I note that Congress has mandated that in deciding black lung claims all relevant evidence be considered: In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. 30 U.S.C. § 923(b). The Conference Report, accompanying the 1978 amendments, states that: With respect to a claim filed or pending prior to" }, { "docid": "12458198", "title": "", "text": "Programs, U.S. Department of Labor, [hereinafter “Director, OWCP”] 766 F.2d 128, 130 (3d Cir.1985) (citing Potomac Electric Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980)). The Supreme Court has held that by contrast, the Secretary of Labor’s interpretation of black lung regulations is due substantial deference since the Secretary wrote the regulations. Therefore, the Secretary’s interpretation should be upheld unless it is “plainly erroneous or inconsistent with the regulation.” Mullins Coal Co. v. Director, OWCP, — U.S. -, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987). See also Bethlehem Mines Corp., 766 F.2d at 130. A. We must consider whether the AU’s determination that a death certificate identifying cardiac arrest as the cause of death and making no reference to the condition of the lungs can be relied upon as “other relevant evidence” to preclude operation of the presumption of pneumoconiosis under 20 C.F.R. § 718.305(b). We must also determine whether the AU’s alternative ruling that the fact that the miner worked until his death disproved the presumption of a totally disabling respiratory impairment. If the death certificate alone cannot be relied upon and if the AU erroneously interpreted the evidence that the miner worked until he died, the regulations do not permit the AU to conclude that the miner did not have a totally disabling respiratory impairment, since the presumption’s remaining prerequisites, that the miner have worked at least fifteen years in a coal mine, see § 718.305(a) , and that there be no medical or other relevant evidence establishing pneumoconiosis or other respiratory disease, see § 718.305(b), are satisfied. 1. The Director promulgated § 718.305(b) pursuant to his delegated authority under Section 413(b) of the Black Lung Benefits Reform Act. The corresponding section of the statute provides in relevant part: In determining the validity of claims under this part, all relevant evidence shall be considered, including where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or" }, { "docid": "17582157", "title": "", "text": "evidence shall be considered.” 30 U.S.C. § 923(b) (emphasis added) (the “All Relevant Evidence Provision” or the “Provision”). The All Relevant Evidence Pro vision was added to the Act in 1972, in the context of prohibiting the denial of benefits based only on the results of a chest roent-genogram. See id. In fuller part, the Provision reads as follows: No claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. Id. (emphasis added). Finally, Part C of the Black Lung Act incorporates certain provisions of the Longshore and Harbor Workers’ Compensation Act, including 33 U.S.C. § 919(d), which in turn incorporates provisions of the Administrative Procedure Act (the “APA”), by reference to 5 U.S.C. § 554. See 30 U.S.C. § 932(a). The APA provides, as relevant here, that “[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d) (the “Irrelevant Evidence Exclusion”). 2. On December 20, 2000, after several years of consideration, the Secretary issued sweeping revisions to the rules governing the adjudication of miners’ claims under Part C of the Black Lung Act, effective January 19, 2001. See Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed.Reg. 79,920 (Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 718, 722, 725-727) (the “Amended Regulations”). The Amended Regulations include limitations on the amount of medical evidence that each party may submit (the “Evidence-Limiting Rules”). The Secretary proposed the Evidence-Limiting Rules “in order to ensure that eligibility determinations are" }, { "docid": "18900057", "title": "", "text": "to the Board, which affirmed the decision of the AU on March 6, 1986. Drummond now appeals the Board’s decision to this court. Our review of the Board’s determination is limited to the question of whether it erred in upholding the ALJ’s decision. The Board is required to uphold the AU’s decision if it is supported by substantial evidence and is in accordance with the law. See 33 U.S.C. § 921(b)(3); Stomps v. Director, Office of Workers’ Comp. Pro grams, U.S. Dep’t of Labor, 816 F.2d 1533, 1534 (11th Cir.1987). Drummond first challenges the AU’s finding that McClendon had pneumoconiosis. The Act defines pneumoconiosis as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). The Code of Federal Regulations provides further elaboration of the Act’s definition of pneumoconiosis: [The Act’s definition of pneumoconiosis] includes, but is not limited to, coal workers’ pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary fibrosis, progressive massive fibrosis, silicosis or silicotuberculosis, arising out of coal mine employment. 20 C.F.R. § 718.201. The AU’s determination was based in part on McClendon’s autopsy report which indicated findings of nodules of anthracosis and fibrosis. These findings clearly constitute substantial evidence and are alone sufficient to support the AU’s decision. The AU also relied on the opinion of McClendon’s treating physician that McClendon’s respiratory problems were caused in part by pneumoconiosis. Under the Act, the AU may determine the existence of pneumoconiosis by relying on the finding of a physician, who in exercising sound medical judgment, makes the finding based on “objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories” that the miner suffered from pneumoconiosis. 20 C.F.R. § 718.202(a)(4). Dr. Brasfield, McClendon’s physician, relied on qualifying blood-gas studies in concluding that McClendon had black lung. The AU was entitled to accord greater significance to Dr. Bras-field’s opinion, as the miner’s examining physician, than to that of Dr. Hamilton, who only reviewed McClendon’s records after his death. “An unequivocal diagnosis by an examining" }, { "docid": "22764496", "title": "", "text": "C. § 801 et seq., was amended by the Black Lung Benefits Act of 1972, 86 Stat. 150, 30 U. S. C. §901 et seq., the Black Lung Benefits Revenue Act of 1977, 92 Stat. 11, the Black Lung Benefits Reform Act of 1977, 92 Stat. 95, the Black Lung Benefits Amendments of 1981, 95 Stat. 1643, the Black Lung Benefits Revenue Act of 1981, 95 Stat. 1635, and the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. 99-272, § 13203(a)(d), 100 Stat. 312, 313. Part B of the Act is codified at 30 U. S. C. § 921 et seq. Part C is codified at 30 U. S. C. § 931 et seq. See 20 CFR pt. 718 and § 725.4(a) (1987). See 30 U. S. C. § 902(f)(1). As the Court of Appeals noted: “The statute... leaves to the Secretary how the presumption is to be triggered and rebutted and how the various burdens of persuasion and production are to be allocated between the claimant and the employer.” Stapleton v. Westmoreland Coal Co., 785 F. 2d 424, 433 (CA4 1986) (en banc). See 30 U. S. C. § 902(f)(2). The statute provides, in part: “In carrying out the provisions of this part, the Secretary shall to the maximum extent feasible (and consistent with the provisions of this part) utilize the personnel and procedures he uses in determining entitlement to disability insurance benefit payments under section 223 of the Social Security Act [42 U. S. C. §423], but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram [X ray]. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” § 923(b) (emphasis added)." }, { "docid": "7157594", "title": "", "text": "in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis, or to have been totally disabled due to pneumoconiosis at the time of death, or death will be presumed to be due to pneumoconiosis, arising out of that employment, if one of the following medical requirements is met: (1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see § 410.428 of this title); (2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease (which meets the requirements for duration in § 410.412(a)(2) of this title) * * *; (3) Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood * * *; (4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment; (5) In the case of a deceased miner where no medical evidence is available, the affidavit of the survivor of such miner or other persons with knowledge of the miner’s physical condition, demonstrates the presence of a totally disabling respiratory or pulmonary impairment. This presumption differs from the § 410.-490 interim presumption in that its availability is conditioned on proof of ten years of coal mine employment. Under § 410.-490(b)(2), a miner with less than ten years of service could invoke the presumption by submitting evidence establishing that his respiratory or pulmonary impairment arose out of coal mine employment. In 1980 the Secretary of Labor issued permanent regulations applicable to the adjudication of all Part C claims filed after March 31, 1980. 20 C.F.R. §§ 718.1-718.-404. Section 727.203(d) provides that a claimant who fails to establish his entitlement to benefits under the terms of the interim presumption may attempt to establish his eligibility under the permanent regulations found in Part 718. See also 20 C.F.R. § 718.2. First the claimant must establish that the miner’s pneumoconiosis arose at least in part out of coal mine employment. If a miner was employed in coal mines" }, { "docid": "18900058", "title": "", "text": "employment. 20 C.F.R. § 718.201. The AU’s determination was based in part on McClendon’s autopsy report which indicated findings of nodules of anthracosis and fibrosis. These findings clearly constitute substantial evidence and are alone sufficient to support the AU’s decision. The AU also relied on the opinion of McClendon’s treating physician that McClendon’s respiratory problems were caused in part by pneumoconiosis. Under the Act, the AU may determine the existence of pneumoconiosis by relying on the finding of a physician, who in exercising sound medical judgment, makes the finding based on “objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories” that the miner suffered from pneumoconiosis. 20 C.F.R. § 718.202(a)(4). Dr. Brasfield, McClendon’s physician, relied on qualifying blood-gas studies in concluding that McClendon had black lung. The AU was entitled to accord greater significance to Dr. Bras-field’s opinion, as the miner’s examining physician, than to that of Dr. Hamilton, who only reviewed McClendon’s records after his death. “An unequivocal diagnosis by an examining physician familiar with the claimant’s medical history is entitled to great weight.” Hamrick v. Schweiker, 679 F.2d 1078, 1082 (4th Cir.1982). See also Smith v. Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 843 F.2d 1053, 1057 (7th Cir.1988); Caraway v. Califano, 623 F.2d 7, 11 (6th Cir.1980). Drummond next contends that the AU erred in finding that McClendon’s death was due to pneumoconiosis within the meaning of 20 C.F.R. section 718.303. That section entitles a claimant to a rebut-table presumption that the miner’s death was due to pneumoconiosis when he was employed in the mines for ten or more years and died of a respirable disease. § 718.303(a). The section further provides that [ u]nder this presumption, death shall be due to a respirable disease in any case in which the evidence establishes that death was due to multiple causes, including a respirable disease, and it is not medically feasible to distinguish which disease caused death or the extent to which the respirable disease contributed to the cause of death. 20 C.F.R. §" }, { "docid": "17582156", "title": "", "text": "— including provisions pertaining to administrative rule-making and adjudication of claims— by both internal cross-reference and reference to other statutes. For instance, its Part C incorporates, “to the extent appropriate,” the provisions of Part B. 30 U.S.C. § 940. Part B, in turn, incorporates a number of provisions from Title II of the Social Security Act. Id. § 923(b). One such incorporated provision from the Social Security Act is 42 U.S.C. § 405(a), which endows the Commissioner of Social Security with the “full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions,” and to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.”' Significantly, Part B of the Black Lung Act mandates that, “[i]n determining the validity of claims under this part, all relevant evidence shall be considered.” 30 U.S.C. § 923(b) (emphasis added) (the “All Relevant Evidence Provision” or the “Provision”). The All Relevant Evidence Pro vision was added to the Act in 1972, in the context of prohibiting the denial of benefits based only on the results of a chest roent-genogram. See id. In fuller part, the Provision reads as follows: No claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. Id. (emphasis added). Finally, Part C of the Black Lung Act incorporates certain provisions of the Longshore and Harbor Workers’ Compensation Act," }, { "docid": "22764497", "title": "", "text": "Co., 785 F. 2d 424, 433 (CA4 1986) (en banc). See 30 U. S. C. § 902(f)(2). The statute provides, in part: “In carrying out the provisions of this part, the Secretary shall to the maximum extent feasible (and consistent with the provisions of this part) utilize the personnel and procedures he uses in determining entitlement to disability insurance benefit payments under section 223 of the Social Security Act [42 U. S. C. §423], but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram [X ray]. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” § 923(b) (emphasis added). The Court of Appeals was of the view that the regulation itself requires all relevant evidence to be considered on rebuttal, and that the Secretary’s reading violated this requirement. See infra, at 149. To the extent that the presumption is made irrebuttable under the Secretary’s reading, see infra, at 149-150, and n. 26, the court thought the statutory requirement that “all relevant evidence” shall be considered violated as well. See 785 F. 2d, at 434. This conclusion is clearly incorrect, for the same reasons that the court’s conclusion regarding the regulation is incorrect. See infra, at 149-150. In short, the opportunity, under the Secretary’s reading, to present relevant evidence at the invocation stage, satisfies the statutory requirement that “all relevant evidence” shall be considered. The resolution of the legal question apparently will not affect two of the individual respondents. Even though the Administrative Law Judge (ALJ) concluded that respondent Gerald R. Stapleton had properly invoked the interim presumption, he also concluded that it had been rebutted. The Court of Appeals majority agreed with that analysis," }, { "docid": "13183838", "title": "", "text": "or 1966, grew so severe that he was unable to perform his work as a drag-line operator. Although he gave up cigarettes in 1965, he had a smoking history of one pack per day for 30 years. Weigand died in early 1983 while Rosebud’s appeal was pending before the BRB; his surviving spouse is still eligible for benefits under 30 U.S.C. § 932(Z). The AU determined that Weigand’s more than 10 years of coal mine employment and his medical test results, specifically his pulmonary function and arterial blood gas scores, created a rebuttable presumption of total disability due to pneumoconiosis under 20 C.F.R. § 727.203(a)(2) and (3). After finding that the presumption had not been rebutted by Rosebud, the AU awarded benefits to Weigand. The BRB affirmed the AU’s Decision and Order. I. To establish a rebuttal defense, Rosebud must prove that Weigand’s disability “did not arise in whole or in part” from coal mine employment. 20 C.F.R. § 727.-203(b)(3). The plaintiff’s medical expert, Dr. Douglas Davidson, a specialist in internal medicine, testified that while Weigand’s lung condition was possibly caused by smoking rather than coal mining, the condition was aggravated by coal dust. The defendant’s medical expert, Dr. Charles Peter Brown, a pulmonary disease specialist, concluded that the claimant’s disability resulted entirely from smoking. Brown further testified that negative x-rays formed the basis of his opinion that Weigand’s difficulties were not attributable to coal miners’ pneumoconiosis. The AU ruled that denying the claim on the basis of Dr. Brown’s testimony would be a denial based solely on a negative chest x-ray, in violation of 30 U.S.C. § 923(b). In affirming the AU’s decision, the BRB stated: Because of the Act’s prohibition against denying claims solely on the basis of negative x-rays, 30 U.S.C. § 923(b), negative x-ray evidence alone cannot provide a sufficient basis for distinguishing between disability caused by coal mine employment and disability caused by cigarette smoking. Accordingly, the administrative law judge rationally inferred that a finding of rebuttal based on Dr. Brown’s causation opinion would, in effect, be an impermissible denial of the claim solely due" }, { "docid": "357937", "title": "", "text": "a rule would thwart the evidentiary burdens imposed by the presumption by “effectively forc[ing] the claimant to come forward with proof of pneumoconiosis by two or more accepted testing techniques before he could derive any practical benefit from the interim presumption — a burden totally incompatible with the language and pruposes of the applicable regulations.\" [citations omitted] Although the Director thus agrees with the panel’s conclusion in Hampton, supra, 678 F.2d at 508, that “[o]nce the presumption arises, the miner’s failure to satisfy the remaining tests does not rebut [it]”, the Director disagrees with Hampton’s further holding that a doctor’s opinion may not be based in part upon nonqualifying tests. Ibid. That further holding is incompatible with the express dicates [sic] of the statute and regulations, which mandate that all probative evidence be weighed in determining whether a presumption of disability is rebutted. Thus, Section 413(b) of the Act, 30 U.S.C. (Supp. V) 923(b), provides that “all relevant evidence shall be considered [by the fact-finder], including ... medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests.” The presumption itself further states that “all relevant medical evidence shall be considered” in rebuttal. 20 C.F.R. 727.203(b). Moreover, this express statutory and regulatory requirement accords with the applicable provisions of the APA, 5 U.S.C. 554, 556, 557, which require the fact-finder to receive relevant evidence and to consider it absent an express statutory direction to do otherwise. In Whicker, supra, and in Director, OWCP v. Beatrice Pocahontas Co., 698 F.3d [sic] 680, 682 (4th Cir.1983), this court correctly recognized that non-qualifying test results are highly probative when utilized in the proper context, as documentation for the opinion of a physician exercising reasoned medical judgment. Properly utilized and interpreted, non-qualifying test results serve as critical diagnostic tools. When a physician performs a physical examination, ventilatory function and arterial blood gas tests provide significant information regarding the individual’s pulmonary status; other tests, such as an electrocardiogram or a physical performance test, enable the physician to diagnose other conditions, rule out black lung disease as a source of" }, { "docid": "12458199", "title": "", "text": "his death disproved the presumption of a totally disabling respiratory impairment. If the death certificate alone cannot be relied upon and if the AU erroneously interpreted the evidence that the miner worked until he died, the regulations do not permit the AU to conclude that the miner did not have a totally disabling respiratory impairment, since the presumption’s remaining prerequisites, that the miner have worked at least fifteen years in a coal mine, see § 718.305(a) , and that there be no medical or other relevant evidence establishing pneumoconiosis or other respiratory disease, see § 718.305(b), are satisfied. 1. The Director promulgated § 718.305(b) pursuant to his delegated authority under Section 413(b) of the Black Lung Benefits Reform Act. The corresponding section of the statute provides in relevant part: In determining the validity of claims under this part, all relevant evidence shall be considered, including where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. Where there is no medical or other relevant evidence in the ease of a deceased miner, such affidavits ... shall be considered to be sufficient to establish that the miner was totally disabled due to pneumoconiosis or that his or her death was due to pneumoconiosis. 30 U.S.C. § 923(b) (1982). We are persuaded that the meaning of § 718.305(b), when read in conjunction with the statute, is that while a widow is entitled to present medical and other relevant evidence to support her assertion that a presumption of disease is appropriate, she may rely on lay affidavits alone if that evidence is by itself insufficient to establish the presumption. Section 413(b) of the Act concerns the establishment of entitlement to benefits, not the rebuttal of a presumption of a totally disabling respiratory disease. It specifically uses the word “supportive” to describe the purpose of the widow’s submissions." }, { "docid": "12458200", "title": "", "text": "his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. Where there is no medical or other relevant evidence in the ease of a deceased miner, such affidavits ... shall be considered to be sufficient to establish that the miner was totally disabled due to pneumoconiosis or that his or her death was due to pneumoconiosis. 30 U.S.C. § 923(b) (1982). We are persuaded that the meaning of § 718.305(b), when read in conjunction with the statute, is that while a widow is entitled to present medical and other relevant evidence to support her assertion that a presumption of disease is appropriate, she may rely on lay affidavits alone if that evidence is by itself insufficient to establish the presumption. Section 413(b) of the Act concerns the establishment of entitlement to benefits, not the rebuttal of a presumption of a totally disabling respiratory disease. It specifically uses the word “supportive” to describe the purpose of the widow’s submissions. It would be turning this provision of the statute on its head to say that evidence that is merely insufficient to support a finding of diseased lungs can be used to preclude her from presenting the lay evidence provided for by the statute. The Congressional intent in amending 30 U.S.C. § 923(b) in 1977 is clear. The House Report on the 1977 Amendments noted that the Amendments to Section 413(b) [30 U.S.C. § 923(b) ] were designed to address: “the dilemma of survivors who, because of the absence of any relevant medical evidence regarding the physical condition of deceased miners cannot establish the validity of an otherwise valid claim. In most cases, the miner died many years ago, and such evidence has been lost or destroyed by the miner’s physician, or is otherwise non-existent.” Dempsey v. Director, OWCP, 811 F.2d 1154, 1159 (7th Cir.1987) (quoting H.R.Rep. No. 151, 95th Cong., 1st Sess. 19-20 (1977), U.S.Code Cong. & Admin.News 1978, pp. 237, 255-256). This reading of the statute is supported by the Seventh Circuit’s holding in" } ]

[ { "docid": "22592584", "title": "", "text": "a disabling impairment. Pain constitutes a disabling condition when it is “constant, unremitting, and wholly unresponsive to therapeutic treatment”. Hence, the law requires the ALJ to make affirmative findings regarding a claimant’s subjective complaints. The ALJ fulfilled his obligation by expressly rejecting Falco’s contention that his subjective pain was of a disabling nature. The ALJ stated: Falco’s subjective symptoms, including pain, are of only a mild to moderate degree and tolerable to claimant for the level of work, residual functional capacity and work limitations as found herein; and claimant’s subjective complaints are found not to be fully credible but somewhat exaggerated. The ALJ was well-founded in this conclusion. The evidence demonstrated that, while Falco undoubtedly experienced some pain, he was able to spend a great deal of time watching television or dining -with friends. Those activities are inconsistent with Falco’s assertion that he could spend no more than 16-20 minutes sitting at a time. Moreover, Falco exhibited no external manifestations of debilitating pain such as marked weight loss. We are not unsympathetic to Falco’s legitimate complaints of pain. Still, the ALJ’s determination that Falco’s pain was not so intense and persistent as to be disabling was supported by substantial evidence. Falco urges that we adopt the Third Circuit’s rule that an ALJ must articulate specifically the evidence that supported his decision and discuss the evidence that was rejected. Although we find that this rigid approach is unnecessary, we have nonetheless set our own strictures that, we feel, effectively reach the same result. In Ab-shire v. Bowen , for example, we explained that, when the evidence clearly favors the claimant, the ALJ must articulate reasons for rejecting the claimant’s subjective complaints of pain. Falco acknowledges that the ALJ gave a “pretty exhaustive list” of his findings. Fal- co, however, persistently argues that the ALJ’s failure to explain his findings as to five objective signs of pain — weakness, addiction to narcotics, limping, knee giveway, and walking limitations — should constitute reversible error. We do not agree. The ALJ is bound by the rules of this Court to explain his reasons for" } ]

[ { "docid": "9791549", "title": "", "text": "of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. Rose v. Shalala, 34 F.3d 13, 16 (1st Cir.1994), citing POMS § DI 24575.005 (1993). “[Because the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant’s testimony regarding [his] symptoms takes on ‘substantially increased’ significance in the ALJ’s evaluation of the evidence.” Fragale v. Chater, 916 F.Supp. 249, 254 (W.D.N.Y.1996) (citation omitted). Moreover, “[chronic fatigue syndrome] is recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which significantly impair [a] claimant’s ability to perform even sedentary work ...” Id. at 253-54 (citations omitted). In evaluating a plaintiffs testimony the Eleventh Circuit has held that the Commissioner must articulate specific and adequate reasons for rejecting a plaintiffs subjective complaints of pain. Allen v. Sullivan, 880 F.2d 1200, 1203 (11th Cir.1989); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988). Furthermore, the reasons given by the Commissioner for refusing to credit a plaintiffs subjective pain testimony must be supported by substantial evidence. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987). In evaluating plaintiffs credibility, the ALJ noted" }, { "docid": "22649309", "title": "", "text": "Instead, he quotes a general comment by a consulting examiner, Dr. Ng, about the facility with which CFS symptoms can be exaggerated. This fact is true, and makes CFS cases difficult to adjudicate, but a general observation such as this in an insufficient reason to discount Claimant’s credibility. In fact, Dr. Ng concluded that Claimant met the CDC’s criteria for the diagnosis of CFS and was disabled. Nor did the ALJ emphasize that four other doctors agreed with the CFS diagnosis, a fifth doctor diagnosed possible CFS, and a sixth diagnosed a fatigue syndrome. None of the examining doctors provided medical evidence countering the CFS diagnosis. Claimant tested positive for the Epstein-Barr antibody, which frequently correlates with CFS. She exhibited the constellation of symptoms often associated with CFS, including a persistent low-grade fever. She also underwent years of testing and examination to rule out other possible illnesses. In addition, the record shows that Claimant periodically advised her doctors when she was feeling somewhat better. This is unlikely behavior for a person intent on overstating the severity of her ailments. We conclude that the ALJ provided unsatisfactory reasons for discounting Claimant’s credibility, and that his findings were unsupported by substantial evidence based on the record as a whole. 2. Residual Functional Capacity The ALJ also failed to take into account the debilitating effects of CFS when making his determination, at step four, that Claimant had the residual functional capacity to perform her past work. Although the ALJ found that “the medical evidence establishes that Claimant has chronic fatigue syndrome,” the ALJ’s evaluation of functional capacity ignored the key symptom of CFS, which is persistent fatigue. Social Security regulations define residual functional capacity as the “maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20 C.F.R. 404, Subpt. P, App. 2 § 200.00(c) (emphasis added). In evaluating whether a claimant satisfies the disability criteria, the Commissioner must evaluate the claimant’s “ability to work on a sustained basis.” 20 C.F.R. § 404.1512(a); Lester, 81 F.3d at 833 (internal quotation marks omitted). The regulations further" }, { "docid": "12221117", "title": "", "text": "complaints — such as pain and fatigue — are difficult to objectively measure, and there is considerable variation among individuals. See Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir.1991) (en bane). There also is much that we do not know about the human body. Merely because we cannot see pain or fatigue on an x-ray, or measure it in a laboratory, does not mean that it is not real. Cf. Bunnell, 947 F.2d at 347 (“We cannot conclude that Congress intended to require objective medical evidence to fully corroborate the severity of pain while aware of the inability of medical science to provide such evidence.”) These symptoms may also persist notwithstanding our uncertainty as to the precise etiology. In such cases, diagnostic procedures such as x-rays and lab tests are only one component of the total picture. Other considerations include (but are not limited to) the professional opinion of the treating and examining physicians; the claimant’s medical history; the credibility of the claimant; the congruity (or lack thereof) between the reported symptoms and the person’s activities and claimed limitations; the response (or lack thereof) to treatment and the claimant’s cooperation in such treatment; whether the reported symptoms are anatomically implausible; and whether there is evidence of an underlying impairment that potentially could produce the sort of pain or other symptoms alleged. This Circuit has repeatedly confronted this issue in the context of social security disability claims, and has developed an analytical framework to assist in the assessment of disability claims predicated upon pain. The Ninth Circuit recently summarized our case-law in that regard: If a claimant produces evidence that he suffers from an ailment that could cause pain, “the ALJ can reject the claimant’s testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.” .... The ALJ rejected Light’s pain testimony because he “found [Light’s] testimony not credible.” In weighing a claimant’s credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony" }, { "docid": "9791550", "title": "", "text": "16 (1st Cir.1994), citing POMS § DI 24575.005 (1993). “[Because the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant’s testimony regarding [his] symptoms takes on ‘substantially increased’ significance in the ALJ’s evaluation of the evidence.” Fragale v. Chater, 916 F.Supp. 249, 254 (W.D.N.Y.1996) (citation omitted). Moreover, “[chronic fatigue syndrome] is recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which significantly impair [a] claimant’s ability to perform even sedentary work ...” Id. at 253-54 (citations omitted). In evaluating a plaintiffs testimony the Eleventh Circuit has held that the Commissioner must articulate specific and adequate reasons for rejecting a plaintiffs subjective complaints of pain. Allen v. Sullivan, 880 F.2d 1200, 1203 (11th Cir.1989); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988). Furthermore, the reasons given by the Commissioner for refusing to credit a plaintiffs subjective pain testimony must be supported by substantial evidence. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987). In evaluating plaintiffs credibility, the ALJ noted that objective physical examinations of plaintiff revealed no edema, joint inflammation or muscle weakness. Addition ally, plaintiff had a complete range of motion and normal grip and dexterity. (T 19; 94, 115) The ALJ further noted that plaintiff reported he could lift forty pounds, drive, and perform repairs and run errands. (T 19; 39, 41-42, 91) According to the ALJ, other evidence indicated plaintiff could walk 1-2 miles, climb, and work at the ACLF operated by his wife. (T 19; 114) For instance, plaintiffs wife stated, he could run errands and both Dr. Seshadri and Dr. Nelson reported that plaintiff worked at the ACLF run by his wife. (T 90; 114; 130) The ALJ also relied on the fact that plaintiff reported his pain was relieved by medication and had not complained of any side effects. (T 19; 91, 93, 96, 99-100) Additionally, other than Dr. Nelson, none of plaintiffs physician placed restrictions on plaintiffs activities. (T 20) Finally, while plaintiff testified at the hearing that he was depressed and suffered from a poor memory" }, { "docid": "22649321", "title": "", "text": "Claimant on a one-time basis. In the absence of Claimant’s key medical records, Dr. Moseley performed standard psychological tests, and from that limited information pronounced that “she may be expected to resume ... an eight-hour workday routine and 40-hour work week.” IV. Evaluation as an Excess Pain Case Claimant contends that the ALJ also erred by characterizing her ease as an “excess pain” case, and applying Social Security Ruling (SSR) 88-13, which provides guidance for evaluating complaints of disabling pain. SSR 88-13, Soe. See. Rep. Ser. 652,1988 WL 236011. Claimant did not allege excess pain as the basis for her claim, yet the ALJ decision stated: The claimant has alleged pain which is neither evinced nor supported by the objective medical evidence in this record. Such excessive pain complaints will be considered in light of other indicia of credible pain beyond the objective medical evidence of record. Citing to SSR 88-13, the ALJ noted: In evaluating the claimant’s allegation of ‘disabling pain’ in this instance, the ALJ has given consideration not only to the medical evidence of record, but also to the type, dosage, effectiveness, and side effects of any prescribed pain medication and to other treatment for pain symptoms. The claimant’s daily activities and functional restrictions during the relevant period have been considered as well in evaluating the credibility of the claimant’s alleged disabling pain complaints. Although SSR 88-13 applies to the evaluation of pain “and other symptoms,” the ALJ considered only pain and its effect on Claimant’s activities and the potential relief by medication, rather than fatigue which is the basis of Claimant’s disability claim. The ALJ’s focus on pain medication and treatment is misplaced, as the CDC has made it ■ clear that no definitive treatment for CFS exists. But even more salient is the fact that the ALJ failed to consider the Program Operations Manual System (“POMS”) guidelines on CFS issued by the Social Security Administration in 1993. The POMS policy states in pertinent part: Chronic Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome," }, { "docid": "23244031", "title": "", "text": "prior case law, holding that remands are required when an ALJ fails to consider properly a claimant’s condition despite evidence in the record of the diagnosis. See Marbury v. Sullivan, 957 F.2d 837, 839-40 (11th Cir. 1992). This holding applies to a claim of CFS when the claimant submits evidence of a CFS diagnosis. We note that the Social Security Administration recently concluded that there are no specific laboratory findings that are widely accepted as being associated with CFS. According to Social Security Ruling 99-2p, the hallmark symptom of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset and cannot be explained by another physical or mental disorder. Moreover, CFS is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substan tial reduction in previous levels of occupational, educational, social, or personal activities. There is no test for CFS. The ALJ appears to have rejected CFS as a diagnosis because there is no definite test or specific laboratory findings to support such a diagnosis. This lack of testing, however, does not preclude the diagnosis of CFS. Because the ALJ ignored the symptoms of CFS, as well as Vega’s other subjective complaints regarding symptoms related to CFS, the ALJ did not meaningfully conduct an analysis of the effect of CFS on Vega’s ability to work. C. Vega contends that the ALJ did not accord proper weight to her treating physicians’ opinions. For the reasons stated in part “B” of this opinion, we agree. The medical evidence and Vega’s testimony support a diagnosis of CFS; therefore, the ALJ should have credited Drs. Yuvienco and Kob’s assessments and findings. Even if their opinions do not warrant controlling weight, the ALJ still erred in failing to give them any weight. D. Vega’s final contention is that the ALJ failed to pose a complete hypothetical to the VE because the question failed to mention her headaches, medication history, significant memory or concentration problems, fatigue, wrist pain, and dizziness. Since the hypothetical question was incomplete, Vega argues that the ALJ" }, { "docid": "11220482", "title": "", "text": "independent judgment regarding her allegations of pain, fatigue and other symptoms, the ALJ must do so in light of medical findings and other evidence regarding the true extent of the pain alleged. Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). Thus: In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual’s complaints solely on the basis of such personal observations. Rather, in all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective medical and the other evidence, including the individual’s complaints of pain or other symptoms and the adjudicator’s personal observations. The rationale must include a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individual’s ability to work.... SSR 95-5p, 1995 WL 670415(SSR) at *2. The Secretary has also adopted a written policy for evaluating claims premised on chronic fatigue syndrome. This policy provides, in pertinent part as follows: Chronic Fatigue Syndrome (CFS) ... is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual eases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should" }, { "docid": "23093563", "title": "", "text": "for the evaluation of claims premised on CFS. This policy states in pertinent part: Chronic Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome, is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been éstablished. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. POMS § DI 24575.005 (1993). To be sure, this particular version of the policy was not promulgated until November of 1993, after the ALJ had issued his decision and the Appeals Council had affirmed it. Yet the previous version of the same section of the POMS set forth the same principles governing the evaluation of chronic Epstein-Barr virus syndrome (CEBV). See Reed v. Secretary of HHS, 804 F.Supp. 914, 918 (E.D.Mich.1992). Although medical authorities have stated that “notwithstanding initial inferences, ... EBV [Epstein-Barr virus] is not the exclusive or even principal cause of Chronic Fatigue Syndrome,” id. at 920 (paraphrasing the Harvard Medical School Health Letter on Chronic Fatigue Syndrome (July 1988)), several courts have noted the close similarity and possible relationship between the two maladies and have treated them more or less as peas in a pod. See, e.g.," }, { "docid": "11220480", "title": "", "text": "de novo or substitute its findings for those of the Secretary. Richardson, supra, 402 U.S. at 401, 91 S.Ct. at 1427. The court’s sole inquiry is “whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached” by the Secretary. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). The Secretary’s determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir.1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). II. Chronic Fatigue Syndrome. Plaintiff, pro se, contends that the ALJ erred in several respects. Plaintiff’s strongest argument is that the ALJ improperly rejected her testimony about her subjective complaints of chronic fatigue and pain. Upon review of the record as a whole in light of the Secretary’s regulatory policies and caselaw pertaining to claims of disability due to CFS, I agree with plaintiffs position. The regulations require the ALJ to consider the claimant’s subjective complaints about her symptoms, “such as pain, fatigue, shortness of breath, weakness, or nervousness,” 20 C.F.R. § 404.1529(b), at each step of the sequential evaluation process. 20 C.F.R. § 404.1529(d). As recently stated in Social Security Ruling (“SSR”) 95-5p, “[b]ecause symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, careful consideration must be given to any available information about symptoms.” SSR 95-5p, 1995 WL 670415(SSR) at *1 (1995) (reiterating longstanding SSA policy regarding evaluation of symptoms); see also 20 C.F.R. § 404.1529(c)(3). When assessing the claimant’s residual functional capacity (“RFC”) at step five, the ALJ “must describe the relationship between the medically determinable impairment(s) and the conclusions regarding functioning which have been derived from the evidence, and must include a discussion of why reported daily activity limitations or restrictions are or are not reasonably consistent with the medical and other evidence.” SSR 95-5p, 1995 WL 670415(SSR) at *1. While an ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an" }, { "docid": "22649322", "title": "", "text": "evidence of record, but also to the type, dosage, effectiveness, and side effects of any prescribed pain medication and to other treatment for pain symptoms. The claimant’s daily activities and functional restrictions during the relevant period have been considered as well in evaluating the credibility of the claimant’s alleged disabling pain complaints. Although SSR 88-13 applies to the evaluation of pain “and other symptoms,” the ALJ considered only pain and its effect on Claimant’s activities and the potential relief by medication, rather than fatigue which is the basis of Claimant’s disability claim. The ALJ’s focus on pain medication and treatment is misplaced, as the CDC has made it ■ clear that no definitive treatment for CFS exists. But even more salient is the fact that the ALJ failed to consider the Program Operations Manual System (“POMS”) guidelines on CFS issued by the Social Security Administration in 1993. The POMS policy states in pertinent part: Chronic Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome, is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treat ment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset duration, severity and residual functional capacity following the sequential" }, { "docid": "22616589", "title": "", "text": "In support of her claim, Smolen produced evidence of: (1) her medical impairments; (2) her subjective symptoms; and (3) the effect those impairments and related symptoms had on her ability to function in school, at work, and in daily activities outside of school and work. This evidence took the form of: (1) hospital records, lab reports, and treating physicians’ chart notes and letters; (2) physicians’ opinions; (3) Smolen’s own subjective symptom testimony; (4) lay witness testimony from Smolen’s mother and sister; (5) evidence regarding Smolen’s education and employment history, including a letter from Smolen’s high school guidance counselor, a school transcript, and a job termination letter; (6) a physical capacities evaluation; and (7) the opinion of a vocational expert. In addition to Smolen’s evidence, the ALJ considered the opinions of two physicians and a vocational expert, all of whom were hired by the Commissioner to evaluate Smolen’s case. In finding Smolen not disabled, the ALJ rejected Smolen’s subjective symptom testimony, the opinions of Smolen’s physicians, and the testimony of Smolen’s family members. We first review the rejection of that evidence for legal error and then determine whether the ALJ’s findings were supported by substantial evidence. A. The ALJ Improperly Rejected Certain Evidence 1. Smolen’s Subjective Symptom Testimony Smolen presented extensive testimony about her fatigue and pain and the effect those symptoms had on her ability to function during the relevant period. However, the ALJ rejected her testimony on .the grounds that her “complaints regarding incapacitating fatigue ... and severe back pain were [n]ot supported by contemporaneous medical evidence and were not credible.” In deciding whether to accept a claimant’s subjective symptom testimony, an ALJ must perform two stages of analysis: the Cotton analysis and an analysis of the credibility of the claimant’s testimony regarding the severity of her symptoms. The Cotton analysis is a threshold test that we set out in Cotton v. Bowen, 799 F.2d 1403 (9th Cir.1986), and reaffirmed in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991) (en banc); see also Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir.1994) (applying Cotton standard to disability determination based" }, { "docid": "22649323", "title": "", "text": "is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treat ment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset duration, severity and residual functional capacity following the sequential evaluation process. POMS § DI 24575.005 (1993). The ALJ’s failure to acknowledge the POMS guidelines may be emblematic of the reluctance to acknowledge CFS that appears to underlie his decision. Y. Conclusion For the reasons described herein, we hold that the ALJ’s decision that Claimant is capable of performing full-time light work and returning to her past work as a payroll clerk is not supported by substantial evidence. After three and a half years of treatment and referral to a series of specialists, Claimant’s treating physician found her to be disabled. An examining physician hired by Claimant’s insurance carrier also determined that she was disabled. The ALJ’s finding that Claimant was not disabled was premised almost exclusively on reports by two Social Security consultative examiners hired in connection with Claimant’s Social Security disability claim. Dr. Wood’s conclusion that Claimant was not disabled was based exclusively on an evaluation of orthopedic factors such as reflexes, grip strength, and ability to sit, stand and walk. Although Dr. Wood’s report noted that Claimant manifested “extreme lethargy,” the potential" }, { "docid": "11220488", "title": "", "text": "the ALJ discredited plaintiffs subjective complaints of pain because “no physician has ever suggested that she suffers from a chronic fatigue syndrome.” (T. 23). While the ALJ did not have Dr. Lanham’s opinion when she issued her decision, her findings are nevertheless erroneous. For one thing, plaintiffs condition was repeatedly diagnosed by her doctors as “fibromyalgia” which, according to the professional guidelines cited above, is not inconsistent with a diagnosis of CFS. See Fudka, et al., The Chronic Fatigue Syndrome, supra at 956. In addition, the record contains several medical reports reflecting plaintiffs long-term complaints of extreme fatigue, muscle and joint pain, concentration problems, and other symptoms consistent with a diagnosis or classification of CFS (T. 174, 177, 180-81, 186, 189, 194-95, 274, 277, 283, 285-86). Therefore, when presented with documented allegations of symptoms which are “entirely consistent with the symptomology” for evaluating CFS, Williams v. Shalala, supra, the Secretary cannot rely on the ALJ’s rejection of the claimant’s testimony based on the mere absence of objective evidence. Instead, the Secretary’s decision in such cases should reflect a recognition of the increased significance to be given the claimant’s credibility in assessing residual functional capacity. Reed v. Secretary of Health and Human Services, supra, 804 F.Supp. at 918. Here, the ALJ found plaintiffs testimony regarding her subjective complaints of pain to “greatly exaggerated and totally self-serving” (T. 23). According to the ALJ, there was no objective medical evidence to support the limitations that plaintiff complained of (Id.). Specifically, the ALJ found that despite her pain and fatigue, plaintiff continued to work, attend school and obtain good grades, socialize for the entire summer, and clean and cook for herself (T. 21,23). This conclusion was contrary to substantial evidence. First, as discussed above, plaintiff’s subjective complaints were in fact supported by competent medical evidence. Second, the ALJ grossly miseharacterized the record in finding that plaintiff has the functional capacity to perform all of these exertional activities on a daily or regular basis (T. 23). To the contrary, plaintiff testified that she last worked in August, 1989, when she first applied for disability (see" }, { "docid": "9791548", "title": "", "text": "main issue here is whether the Commissioner erred in failing to apply the guidelines set forth in defendant’s Program Operations Manual System (POMS) for evaluation of complaints relating to chronic fatigue syndrome in determining plaintiffs residual functional capacity. Surprisingly, the Commissioner does not respond to this argument. The ALJ determined that plaintiff suffered from chronic fatigue syndrome and migraine headaches, but he did not have an impairment or combination of impairments which would qualify him for disability. Further, the ALJ found that plaintiff had the résidual functional capacity to perform a full range of sedentary work. The ALJ based the findings on the medical and documentary evidence which he found undermined plaintiffs credibility regarding his allegations of frequency and intensity of symptoms. In determining that plaintiffs testimony was not credible as well as his residual functional capacity, the ALJ did not refer to the POMS guidelines. The guidelines provide: Chrome Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome, is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. Rose v. Shalala, 34 F.3d 13," }, { "docid": "22086352", "title": "", "text": "800 F.2d at 545; see also Her v. Commissioner of Social Security, 203 F.3d 388, 389-90 (6th Cir.1999) (“Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached. See Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).”). This is so because there is a “zone of choice” within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). Subjective complaints of “pain or other symptoms shall not alone be conclusive evidence of disability.” ' 42 U.S.C. § 423(d)(5)(A). The standard for evaluating subjective complaints of pain was set forth by the Sixth Circuit in Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 853 (6th Cir.1986): 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. The ALJ’s findings as to a claimant’s credibility are entitled to deference, because of the ALJ’s unique opportunity to observe the claimant and judge her subjective complaints. See, e.g., Gaffney v. Bowen, 825 F.2d 98, 101 (6th Cir.1987) (citing Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). In evaluating a claimant’s alleged disability, medical opinions and diagnoses of treating physicians are entitled to great weight. See, e.g., Cohen, 964 F.2d at 528 (citing King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984)). However, the ALJ “is not bound by conclusory statements of doctors, particularly where they are unsupported by detailed objective criteria and documentation.” Id. Recently, there have been a number of cases in the federal courts regarding how chronic fatigue syndrome should be evaluated in relation to the Social Security disability analysis. For instance, in Gardner-Renfro v. Apfel, No. 00-6077," }, { "docid": "11220485", "title": "", "text": "validated in scientific studies; moreover, no definitive treatments for it exist. Recent longitudinal studies suggest that some persons affected by the chronic fatigue syndrome improve with time but that most remain functionally impaired for several years. Id. at 953. The guidelines recommend CFS classification if, after other diagnostic possibilities have been excluded through a series of clinical examinations and testing, the subject reports persistent or relapsing fatigue for 6 or more consecutive months and exhibits four or more of the following symptoms concurrently for 6 or more consecutive months: 1. impaired memory or concentration; 2. sore throat; 3. tender cervical or axillary lymph nodes; 4. muscle pain; 5. multi-joint pain; 6. new headaches; 7. unrefreshing sleep; and, 8. post-exertion malaise. Id. at 955. As suggested by these guidelines and by the Secretary’s own policy statements, and as several cases have held, CFS is recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which “significantly impair [a] claimant’s ability to perform even sedentary work_” Rose v. Shalala, supra, 34 F.3d at 17; see also Sisco v. U.S. Dept. of Health and Human Services, 10 F.3d 739 (10th Cir. 1993); Thaete v. Shalala, 826 F.Supp. 1250 (D.Colo.1993); Reed v. Secretary of Health and Human Services, 804 F.Supp. 914 (E.D.Mich.1992). In such cases, because the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant’s testimony regarding her symptoms takes on “substantially increased” significance in the ALJ’s evaluation of the evidence. Reed, supra, 804 F.Supp. at 918. For example, in Williams v. Shalala, supra, the ALJ found that the plaintiff had failed to establish disability based on CFS. In doing so, the ALJ rejected the plaintiffs testimony regarding her subjective complaints of pain as “wholly unsubstantiated by objective medical findings.” 1995 WL 328487 at *6. Upon review, the court found that the ALJ’s rejection of the plaintiffs credibility was not supported by substantial evidence. According to the court, because the plaintiffs complaints “were entirely consistent with the symptomology for CFS recognized by the Secretary in § DI 24575.005 ...,”" }, { "docid": "23130183", "title": "", "text": "PER CURIAM: Robert Lee Chambliss (“Chambliss”) appeals from the district court’s judgment affirming the denial of his application for disability insurance benefits. He argues that the (1) Administrative Law Judge (“ALJ”) improperly evaluated his allegations of pain; (2) the ALJ did not give appropriate weight to the Veterans Administration’s (“VA”) determination that he was permanently and totally disabled; and (3) the ALJ relied solely on expert witness testimony and not his medical records. 1. Allegations of Pain The ALJ did not improperly evaluate the claimant’s allegations of pain. Whether pain is disabling is an issue for the ALJ, who has the primary responsibility for resolving conflicts in the evidence. See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir.1991). It is within the ALJ’s discretion to determine the disabling nature of a claimant’s pain, and the ALJ’s determination is entitled to considerable deference. See Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir.1991); James v. Bowen, 793 F.2d 702, 706 (5th Cir.1986). The determination whether an applicant is able to work despite some pain is within the province of the administrative agency and should be upheld if supported by substantial evidence. See Jones v. Heckler, 702 F.2d 616, 622 (5th Cir.1983). Moreover, pain must be constant, unremitting, and wholly unresponsive to therapeutic treatment to be disabling. See Falco v. Shalala, 27 F.3d 160, 163 (5th Cir.1994). Subjective complaints of pain must also be corroborated by objective medical evidence. See Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir.1989). In the instant case, the ALJ properly considered Chambliss’ complaints of chest pain. However, the ALJ determined that Chambliss’ statements concerning his impairments, i.e., chest pain, and their impact on his ability to work were “not entirely credible in light of the reports of the treating and examining practitioners and the medical history.” The ALJ concluded that “nothing [in the medical records] shows significant ongoing cardiac problems or any basis for restricting the claimant to less than light work activity, limited by seizure precautions and a restriction from exposure to concentrated pulmonary irritants.” (Tr. At 14). Based upon the medical records in" }, { "docid": "11220483", "title": "", "text": "fatigue syndrome. This policy provides, in pertinent part as follows: Chronic Fatigue Syndrome (CFS) ... is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual eases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. Program Operations Manual System (“POMS”) § DI 24575.005 (1993) {quoted in Rose v. Shalala, 34 F.3d 13, 16-17 (1st Cir.1994)); see also Williams v. Shalala, 1995 WL 328487, at *4-5 (W.D.N.Y.). The Secretary’s policy is further reflected in professional guidelines for the evaluation and study of CFS cases, developed by the International Chronic Fatigue Syndrome Study Group. See Fudka, Straus, Hiekie, Sharpe, Dobbins and Komaroff, The Chronic Fatigue Syndrome: A Comprehensive Approach to Its Definition and Study, Annals of Internal Medicine, Vol. 121, No. 12, pp. 953-59 (December 15, 1994). These guidelines describe CFS as follows: ... a clinically defined condition characterized by severe disabling fatigue and a combination of symptoms that prominently features self-reported impairments in concentration and short-term memory, sleep disturbances, and musculoskeletal pain. Diagnosis of the chronic fatigue syndrome can be made only after alternative medical and psychiatric causes of chronic fatiguing illness have been excluded. No pathogno-monic signs or diagnostic tests for this condition have been" }, { "docid": "22086353", "title": "", "text": "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. The ALJ’s findings as to a claimant’s credibility are entitled to deference, because of the ALJ’s unique opportunity to observe the claimant and judge her subjective complaints. See, e.g., Gaffney v. Bowen, 825 F.2d 98, 101 (6th Cir.1987) (citing Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). In evaluating a claimant’s alleged disability, medical opinions and diagnoses of treating physicians are entitled to great weight. See, e.g., Cohen, 964 F.2d at 528 (citing King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984)). However, the ALJ “is not bound by conclusory statements of doctors, particularly where they are unsupported by detailed objective criteria and documentation.” Id. Recently, there have been a number of cases in the federal courts regarding how chronic fatigue syndrome should be evaluated in relation to the Social Security disability analysis. For instance, in Gardner-Renfro v. Apfel, No. 00-6077, 2000 WL 1846220 (10th Cir. Dec. 18, 2000) (unpublished), the Tenth Circuit analyzed a claim of disability from the effects of chronic fatigue syndrome. That court found, however, that there was substantial evidence in the record to support the ALJ’s determination that the claimant retained the residual functional capacity to perform work in the economy. Id. at *4-5. Specifically, there were “numerous medical assessments of [claimant’s] physical ability to work as well as assessments of her mental ability to work.” Id. at *4. The only evidence to the contrary was a physician’s report that the claimant had stated that she was “physically too fatigued and in too much pain to work.” Id. The Tenth Circuit refused to reweigh the evidence, and affirmed the decision to deny the claimant disability benefits. Id. at *4-5. The First Circuit also recently dealt with a chronic fatigue syndrome disability claim. In Abdus-Sabur v. Callahan, No. 98-2242,1999 WL 551133 (1st Cir. July 27, 1999) (unpublished), the claimant had been diagnosed with CFS and two of her physicians had “indicated that" }, { "docid": "22086442", "title": "", "text": "Properly Evaluate Rogers’ Credibility In evaluating Rogers’ subjective complaints, the ALJ determined that her testimony was not fully credible. Specifically, the ALJ was persuaded by the absence of objective medical evidence supporting her symptoms, Rogers’ own testimony regarding her daily activities, and testimony by Dr. Leeb that the best treatment for fibro-myalgia patients is to exercise regularly. Whether the ALJ permissibly found Rogers’ complaints not credible depends not only upon the scope of his authority in making such credibility determinations, but also upon his evaluation of the evidence on which the determinations were made. In many disability cases, the cause of the disability is not necessarily the underlying condition itself, but rather the symptoms associated with the condition. 20 C.F.R. § 416.929; Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 686 (6th Cir.1992) (noting that “this court has previously held that subjective complaints of pain may support a claim for disability”). Claims based upon fibromyalgia are of this type as the complaints of pain, stiffness, and fatigue associated with the condition are the source of the alleged disability. Where the symptoms and not the underlying condition form the basis of the disability claim, a two-part analysis is used in evaluating complaints of disabling pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001); Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ will ask whether the there is an underlying medically determinable physical impairment that could reasonably be expected to produce the claimant’s symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds that such an impairment exists, then he must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual’s ability to do basic work activities. Id. Relevant factors for the ALJ to consider in his evaluation of symptoms include the claimant’s daily activities; the location, duration, frequency, and intensity of symptoms; factors that precipitate and aggravate symptoms; the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; other treatment undertaken to reheve symptoms; other measures taken to relieve symptoms," } ]

[ { "docid": "8722242", "title": "", "text": "it determined that Dr. Talmage’s testimony was not such as would probably change the outcome of this trial. B. MOTION FOR RELIEF FROM JUDGMENT Appellant also asserts that the trial court erred by not granting her Rule 60(b)(3) motion for relief from judgment. She reasons that the statements made at trial by Drs. Williams and Bradshaw amount to perjury, making relief under Rule 60(b)(3) appropriate. “A rule 60(b)(3) assertion must be proved by clear and convincing evidence, and the conduct complained of must be such as to prevent the losing party from fully and fairly presenting its case.” Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir.1992), citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). The purpose of the rule is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect. Johnson v. Offshore Exploration, Inc., 845 F.2d 1347, 1359 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). The decision to relieve a party from final judgment is within the sound discretion of the trial court. Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir.1979). We will disturb the district court’s decision only for an abuse of discretion. Johnson, 845 F.2d at 1359; Montgomery, 592 F.2d at 279. Appellant contends that the deposition and trial testimony of Drs. Williams and Bradshaw, on the issue of whether an aminoglyco-side blood serum test could be run on a weekend, amounted to perjury. Appellant asserts that Rule 60(b)(3) is in place to ensure that a party can reap no reward for engaging in fraudulent conduct. We agree with Appellant’s general statement, but we must examine the record to determine if it is to be applied here. If unequivocal evidence establishes that a party willfully perjured himself, and thereby prevented the opposition from fully and fairly presenting its case, use of Rule 60(b)(3) to grant the innocent party a new trial would be a proper response. This, however, is not such a ease. Drs. Williams and Bradshaw testified that it was impossible to monitor aminoglycoside blood serum" } ]

[ { "docid": "15556575", "title": "", "text": "and was not under the small claims procedure as Mr. Palmer’s is. II. Mr. Palmer further argues that on reconsideration the GSBCA wrongly failed to apply it's Rule 133(a)(3), which provides, “The [GSBCA] may relieve a party from the operation of a final decision or order for fraud, misrepresentation, or other misconduct of an adverse party.” Mr. Palmer asserts that this rule should have been applied by the GSBCA because the GSA misled him. However, Mr. Palmer’s Rule 133 argument here merely reasserts the same claims that were denied by the GSBCA on May 12, 1997; this argument addresses the GSBCA’s proceedings only nominally, and really concerns the conduct of the sale. Further, under Rule 133, fraud and the other wrongs must have been committed by “an adverse party.” At the time of the sale of the Bronco, however, GSA was not an adverse party, which implies pending litigation, for there was none then. We compare Rule 133 with the Rules of Civil Procedure, specifically Rule 60(b) for relief from a judgment or an order. Rule 60(b) states: Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of “an adverse party;” Rule 133 and Rule 60 are both Rules that are applied when final decisions can be reopened for fraud. Rule 60(b) has been interpreted to mean fraud in the proceedings. See, e.g., Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983) (“To prevail [under Rule 60(b)(3) ], the movant must establish that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving party from fully and fairly presenting his case.”); Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978) (“Rule [60(b)(3)] is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.”); see also Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238," }, { "docid": "8722241", "title": "", "text": "litigant would independently investigate such a pivotal issue and be less than willing to adopt blindly the statements of the opposing party. Appellant is unable to demonstrate that, had she vigorously pursued this avenue of discovery prior to trial, she would have failed to uncover evidence similar to the statements contained in Dr. Talmage’s affidavit. We are unconvinced that Dr. Tal-mage’s affidavit is the type of “new evidence” that a truly diligent litigant would be powerless to unearth given five years of discovery. Furthermore, Appellant failed to demonstrate that Dr. Talmage’s testimony would probably change the outcome of this case. This was a complicated case requiring nearly two weeks of trial and numerous expert witnesses. Several experts testified that the medical treatment administered by Drs. Williams and Bradshaw was appropriate under the circumstances. The trial judge was afforded the opportunity to gage the credibility of these witnesses, a luxury this court does not enjoy. We decline Appellant’s invitation to second-guess the trial court. Accordingly, we are unconvinced that the district court abused its discretion when it determined that Dr. Talmage’s testimony was not such as would probably change the outcome of this trial. B. MOTION FOR RELIEF FROM JUDGMENT Appellant also asserts that the trial court erred by not granting her Rule 60(b)(3) motion for relief from judgment. She reasons that the statements made at trial by Drs. Williams and Bradshaw amount to perjury, making relief under Rule 60(b)(3) appropriate. “A rule 60(b)(3) assertion must be proved by clear and convincing evidence, and the conduct complained of must be such as to prevent the losing party from fully and fairly presenting its case.” Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir.1992), citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). The purpose of the rule is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect. Johnson v. Offshore Exploration, Inc., 845 F.2d 1347, 1359 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). The decision to relieve a party from final judgment is" }, { "docid": "14869050", "title": "", "text": "superintendent regarding matters concerning paid detail or secondary employment assignments. All other matters shall be communicated in writing, in a standardized format available for public review. The City argues that this statute seriously curtails its ability to comply with certain provisions of the NOPD Consent Decree, an argument the DOJ asserts is without merit. However, Section 33:2339 of the Louisiana Revised Statutes was not brought to the district court’s attention because it was not enacted until June 4, 2013, after its ruling on the 60(b) motion. Accordingly, we decline to address this issue. 4. The investigation and negotiations with the DOJ were tainted by the actions of DOJ employees. The City argues that the NOPD Consent Decree should be vacated under Rule 60(b)(3) because the actions of Assistant U.S. Attorney Perricone and others constitute fraud, misrepresentations or misconduct by an opposing party. A party making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case. Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 772 (5th Cir.1995) (quotations and citations omitted). The moving party has the burden of proving the misconduct by clear and convincing evidence. Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). Unlike Rule 60(b)(2), 60(b)(3) does not require that the information withheld be such that it can alter the outcome of the case. Id. Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” Id. Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005) (emphasis added). The district court noted that the City learned of at least one of Perricone’s aliases and online postings several months before the NOPD Consent Decree was signed. After this information was revealed, the City continued negotiations on the Consent Decree. More aliases and postings were revealed after the NOPD Consent Decree was signed. Even now, however, the City does not identify any way that it was prevented from “fully and fairly presenting its" }, { "docid": "13008491", "title": "", "text": "and its representatives had been exonerated, and that no charges or complaints had been filed or were pending against them. Berns and Garcia claimed that as a result of these misrepresentations they were prevented from fully and fairly presenting their case and that they were entitled to relief from the adverse judgment against them. Following a hearing at which Berns and Garcia provided the court with numerous references to the original trial transcript and various other exhibits as evidence of misrepresentations on the part of Hutton and its attorneys during the trial, the magistrate denied the Rule 60(b)(3) motion. Berns and Garcia now appeal from the magistrate’s decision. Federal Rule of Civil Procedure 60(b)(3) provides for relief from a final judgment where there has been “fraud * *, misrepresentation or other misconduct of an adverse party.” To prevail on a Rule 60(b)(3) motion, the moving party “must establish that the adverse party engaged in fraud or other misconduct and that this conduct prevented the moving party from fully and fairly presenting its case.” Stridiron v. Stridiron, 698 F.2d 204, 206-07 (3d Cir.1983). See also Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir.1979); Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). The movant’s burden of proof is one of “clear and convincing evidence.” Rozier, 573 F.2d at 1339. It is within the trial court’s discretion to determine whether the Rule 60(b)(3) test has been met, and on review the only inquiry is whether there has been an abuse of discretion. See Montgomery, 592 F.2d at 279. We cannot say that the trial court abused its discretion in denying Bern’s and Garcia’s Rule 60(b)(3) motion. The representations by Hutton witnesses and attorneys can be broken down into two categories: those made within the presence of the jury and those made to the court, outside the jury’s presence. Berns and Garcia argue that Hutton falsely represented to the jury that: (1) the SEC investigation of Hutton had been completed; (2) Hutton had been exonerated by the SEC; and (3) the SEC had not brought any charges against Hutton or" }, { "docid": "123735", "title": "", "text": "as a trial exhibit and not because the PBT device was irrelevant. The court acknowledged the Cooks’ concern “that the exhibit was flourished by [Chief Locke] in front of the jury in violation of the Court’s ruling,” but concluded, “Nonetheless, the error is harmless.” The district court explained, Although during questioning, [Chief Locke] was not allowed to display the PBT, he was interrogated specifically about what a PBT looks like, how it is operated and the general implementation of the device. Had the jury not seen the PBT, there was ample legitimate description by the witness of its appearance and its use. “We review a district court’s denial of a motion for a new trial for abuse of discretion.” Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 731 (8th Cir.2006) (citation omitted). Under Rule 60(b)(3), “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for ... misconduct by an opposing party.” “To prevail on a Rule 60(b)(3) motion, the moving party ‘must establish that the adverse party engaged in fraud or other misconduct and that this conduct prevented the moving party from fully and fairly presenting its case.’ ” E.F. Hutton & Co. v. Berns, 757 F.2d 215, 216-17 (8th Cir.1985) (quoting Stridiron v. Stridiron, 698 F.2d 204, 206-07 (3d Cir.1983)). “The movant’s burden of proof is one of ‘clear and convincing evidence.’” Id. (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978)). “It is within the trial court’s discretion to determine whether the Rule 60(b)(3) test has been met, and on review the only inquiry is whether there has been an abuse of discretion.” Id. (citation omitted). The district court did not err in denying the Cooks’ motion for a new trial. It was within the district court’s discretion to find Chief Locke’s conduct, whether intentional or inadvertent, did not prevent the Cooks from fully and fairly presenting their case. Because Chief Locke was permitted to provide a detailed description of the PBT device, any improper showing of the device was merely duplicative" }, { "docid": "21362415", "title": "", "text": "trial may be granted if “the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985) (citations omitted); see also McFadden v. Wal-Mart Stores, No. 04-2547, 2006 WL 3087164, at *2 (E.D.La. Oct. 27, 2006). There is no dispute that Rule 59 governs the Plaintiffs arguments (1) that the Court abused its discretion and committed prejudicial error by preventing Dr. Baldwin and Dr. Graham from testifying that Vioxx was a contributing cause of Mr. Irvin’s death, and (2) that the Court abused its discretion and committed prejudicial error by denying the Plaintiffs motion for a continuance of the re-trial following the Court’s Dau-bert decisions involving Dr. Baldwin and Dr. Graham. However, the Plaintiffs supplemental brief was filed within one year of the entry of judgment and seeks relief on one new ground pursuant to Rule 60(b)(3), which provides that “the court may relieve a party ... from a final judgment ... for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Fed. R.Civ.P. 60(b)(3). “A party making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting [her] case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005). With respect to the first factor, the Plaintiff “has the burden of proving the misconduct by clear and convincing evidence.” Id. With respect to the second factor, the Plaintiff need not show that “the information withheld be such that it can alter the outcome of the case.” Id. Indeed, Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978); see also Atchison, Toreka, & Sante Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir.1957) (“[Rule 60(b)] is remedial and should be liberally construed.”)." }, { "docid": "21362416", "title": "", "text": "judgment ... for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Fed. R.Civ.P. 60(b)(3). “A party making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting [her] case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005). With respect to the first factor, the Plaintiff “has the burden of proving the misconduct by clear and convincing evidence.” Id. With respect to the second factor, the Plaintiff need not show that “the information withheld be such that it can alter the outcome of the case.” Id. Indeed, Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978); see also Atchison, Toreka, & Sante Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir.1957) (“[Rule 60(b)] is remedial and should be liberally construed.”). A. Daubert Rulings In the instant motion for a new trial, the Plaintiff re-urges her previous arguments concerning Dr. Thomas Baldwin and Dr. Michael Graham. The Plaintiff continues to contend that the Court abused its discretion by preventing these expert witnesses from offering opinion testimony on specific causation. Prior to the first trial in Houston, the Court issued an omnibus Order and Reasons resolving numerous Daubert challenges. See In re Vioxx Prods. Liab. Litig., 401 F.Supp.2d 565 (E.D.La.2005). In that decision, the Court held as follows with respect to Dr. Baldwin, the Plaintiffs cardiologist: Merck’s challenge to Dr. Baldwin is quite similar to its challenge of Dr. Gan-dy. Like Dr. Gandy, Dr. Baldwin’s expert report is quite short and concluso-ry. It is only twelve pages long. The first seven pages concern his qualifications, background, and materials reviewed. The last five pages consist of a recitation of the facts and seven paragraphs of conclusions. Furthermore, Dr. Baldwin’s deposition testimony also reveals his lack of understanding. During repeated points in his deposition testimony, Dr. Baldwin made assertions" }, { "docid": "19371078", "title": "", "text": "not unique to patent law, we review the district court’s denial under the law of the regional circuit, in this case, the Fifth Circuit. Marquip, Inc. v. Fosber Am., Inc., 198 F.3d 1363, 1369 (Fed.Cir.1999). In the Fifth Circuit, a district court’s denial of a motion under Rule 60(b) is reviewed for an abuse of discretion. Patterson v. Mobil Oil Corp., 335 F.3d 476, 486 (5th Cir.2003). Rule 60(b) states in relevant part that: On a motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (3)fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (6) any other reason that justifies relief. Fed. R. Civ. Proc. 60(b) (emphasis added). On appeal, CEATS argues that the district court abused its discretion by failing to grant relief from judgment under both Rule 60(b)(3) and Rule 60(b)(6). CEATS contends that Fish’s failure to disclose the facts surrounding the Karlseng litigation was improper and amounts to “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. Proc. 60(b)(3) (emphasis added). Because the basis for relief under Rule 60(b)(6) must be mutually exclusive from the other five grounds for relief under Rule 60(b), Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), CEATS argues that it is Faulkner’s — not Fish’s — failure to disclose the facts surrounding the Karlseng litigation that entitles it to relief under Rule 60(b)(6). a. Rule 60(b)(3) In the Fifth Circuit, the party seeking relief under Rule 60(b)(3) must prove by clear and convincing evidence “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005) (citing Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 772 (5th Cir.1995)). CEATS conceded at oral argument, however, that there is nothing in the record that shows it" }, { "docid": "12173618", "title": "", "text": "counsel represented Robins in both Harre and Dembrowsky. After learning of Dr. Keith’s testimony in Dembrowsky, Appellants filed the Rule 60(b)(3) motion. They alleged that Dr. Keith’s deposition testimony in Dembrowsky was evidence a fraud had been committed upon the court at trial of the present action in which Dr. Keith had testified that wicking studies had been conducted under his direction. Appellants contended that, but for defense counsel’s and Dr. Keith’s representation that Dr. Keith had personally conducted such studies, the testimony of Dr. Keith would not have been presented to the jury, and the jury might well have reached a different result. The district court, in denying the motion, found that Appellants failed to show that the conduct of Dr. Keith and defense counsel prevented Appellants from fully and fairly presenting their case. The district court characterized the discrepancies in Dr. Keith’s testimony in the two cases as “minor inconsistencies.” Further, the court noted that Appellants’ counsel could have explored Dr. Keith’s involvement in the wicking studies on cross-examination but failed to do so. Rule 60(b) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party____ “To prevail, the movant must establish that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving party from fully and fairly presenting his case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983); See also Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). We find that the record supports Appellants’ argument that a material expert witness testified falsely on the ultimate issue in the case, where the defense attorneys knew or should have known of the falsity of the testimony. We disagree with the characterization of the discrepancies as “minor inconsistencies.” Further, we do not share the opinion of Robins, as asserted in its brief, that the differences are “incidental” and “trivial” in nature," }, { "docid": "23347803", "title": "", "text": "pretrial discovery devices, including deposition notices and demands for document production. He also had access to Yaeger, had he chosen to take advantage of that opportunity in a timely fashion. See supra Part 11(A). Karak availed himself of none of these measures. Had he done so, common sense suggests that he easily could have discovered any misstatements and laid bare the facts prior to the entry of judgment. This is not a case like Anderson, in which a defendant allegedly concealed evidence during pretrial discovery. 862 F.2d at 922-23. Bursaw made no bones about the fact that Slifka and Davis were its key witnesses, and did not in any way obstruct Karak’s ability to depose them or to inspect its corporate records. When a party is capable of fully and fairly preparing and presenting his case notwithstanding the adverse party’s arguable miseon- duct, the trial court is free to deny relief under Rule 60(b)(3). See Diaz v. Methodist Hosp., 46 F.3d 492, 497 (5th Cir.1995). So is it here: while one can debate the extent to which Yaeger’s version of the facts differs from Slifka’s and Davis’s, and which of those versions is more credible, one cannot plausibly contend, on this record, that Karak’s pursuit of the truth was hampered by anything except his own reluctance to undertake an assiduous investigation (including pretrial discovery). That ends the matter. Rule 60(b)(3) is designed to afford protection against judgments that are unfairly obtained rather than against judgments that are factually suspect. In re M/V Peacock, 809 F.2d 1403, 1405 (9th Cir.1987); Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). In light of this design, the district court did not abuse its discretion in refusing to set aside the instant judgment under Rule 60(b)(3). III. Conclusion It is trite, but true, that “[cjourts, like the Deity, are most frequently moved to help those who help themselves.” Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir.1988). This is such an instance: Karak neglected to prepare his case in a diligent fashion and compounded that omission by" }, { "docid": "22155626", "title": "", "text": "sufficiently egregious conduct to constitute fraud on the court as set forth in United States v. Buck, 281 F.3d 1336, 1342 (10th Cir.2002). Zurich argues the district court erroneously applied Buck’s heightened fraud on the court standard to its motion by requiring proof of “intent to deceive or defraud the court,” through a “deliberate scheme,” id. (internal quotation omitted), rather than the lower Rule 60(b)(3) standard for fraud or misconduct between the parties. In support, Zurich cites the Rule 60(b)(3) standards applied by other circuits which do not require evidence of intent to deceive through a deliberate scheme. See Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir.1994) (requiring under Rule 60(b)(3) only that the defendant prove by clear and convincing evidence that (1) it has a meritorious defense, (2) the non-moving party engaged in misconduct and (3) the misconduct prevented the moving party from fully presenting its case for claims of fraud); Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.1988) (holding “misconduct” under Rule 60(b)(3) does not require proof of intent to deceive). Rule 60(b)(3) allows a court to relieve a party from a final judgment based on “fraud ..., misrepresentation, or other misconduct of an adverse party.” Regardless of the specific form of the allegation, the party relying on Rule 60(b)(3) must, by adequate proof, clearly substantiate the claim of fraud, misconduct or misrepresentation. Wilkin v. Sunbeam, 466 F.2d 714, 717 (10th Cir.1972). In other words, “they must show ‘clear and convincing proof of fraud, misrepresentation, or misconduct.” Cummings, 365 F.3d at 955. See Yapp, 186 F.3d at 1231; Anderson v. Dep’t of Health & Human Servs., 907 F.2d 936, 952 (10th Cir.1990). Moreover, “the challenged behavior must substantially have interfered with the aggrieved party’s ability fully and fairly to prepare for and proceed at trial.” Woodworker’s Supply Inc., 170 F.3d at 993 (internal quotation omitted); Cummings, 365 F.3d at 955. Subsection (b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect,” which may be remedied under subsections (b)(1) or (2). Rozier v. Ford Motor Co., 573 F.2d 1332, 1339" }, { "docid": "8722244", "title": "", "text": "levels on the weekends. In addition, Dr. Edwin M. Ory, Co-Director of the Infectious Diseases Research Laboratory at Methodist Hospital, submitted an affidavit which unequivocally states that weekend lab testing for aminoglycoside blood serum levels was unavailable at Methodist Hospital in January, 1987. Dr. Talmage’s affidavit squarely contradicts the assertions of Drs. Ory, Williams and Bradshaw. Dr. Talmage claims that his affidavit is based on personal knowledge. There is no indication, however, as to how Dr. Talmage acquired this personal knowledge. According to his own curriculum vitae, Dr. Talmage has never worked in the Methodist Hospital, nor is he a member of its staff. At most, Dr. Talmage’s affidavit creates a factual dispute over whether the Methodist Hospital’s Infectious Diseases Research Laboratory was capable of performing aminoglycoside blood serum testing on weekends in January, 1987. Appellant’s new evidence does not conclusively establish that Drs. Bradshaw and Williams intentionally perjured themselves. As we noted above, Rule 60(b)(3) is not intended to correct those outcomes which may be factually incorrect, but rather to protect against a party prevailing by unfair means. Johnson, 845 F.2d 1347. Even if we accept as true Appellant’s assertions of perjury, we would only set aside the decision of the trial court if we found that Appellee’s actions foreclosed the possibility that Appellant could “fully and fairly present her case.” Longden, 979 F.2d at 1103. In the case at hand, Appellant had independent access to information concerning the availability of aminoglycoside testing in January, 1987. Dr. Talmage’s affidavit proves that this information was not under the exclusive control of the Appellees. It is likely that a more focused effort by Appellant could have uncovered this evidence prior to trial. When a party is capable of fully and fairly presenting her case notwithstanding “fraud, misrepresentation, or other misconduct,” the trial court does not err when it denies a Rule 60(b)(3) motion. See Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978) (finding abuse of discretion where the alleged fraud concerned information within the exclusive purview of wrongdoer). As we noted above, Rule 60(b)(3) is not intended to correct" }, { "docid": "123736", "title": "", "text": "establish that the adverse party engaged in fraud or other misconduct and that this conduct prevented the moving party from fully and fairly presenting its case.’ ” E.F. Hutton & Co. v. Berns, 757 F.2d 215, 216-17 (8th Cir.1985) (quoting Stridiron v. Stridiron, 698 F.2d 204, 206-07 (3d Cir.1983)). “The movant’s burden of proof is one of ‘clear and convincing evidence.’” Id. (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978)). “It is within the trial court’s discretion to determine whether the Rule 60(b)(3) test has been met, and on review the only inquiry is whether there has been an abuse of discretion.” Id. (citation omitted). The district court did not err in denying the Cooks’ motion for a new trial. It was within the district court’s discretion to find Chief Locke’s conduct, whether intentional or inadvertent, did not prevent the Cooks from fully and fairly presenting their case. Because Chief Locke was permitted to provide a detailed description of the PBT device, any improper showing of the device was merely duplicative of other evidence presented at trial. E. Jury Instruction Diane also claims the district court abused its discretion when the court declined to use Diane’s proposed jury in struction which quoted a portion of the Fourth Amendment. “We review the district court’s jury instructions for abuse of discretion.” Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir.2008) (citation omitted). “ ‘[W]e afford the district court broad discretion in choosing the form and language of the instructions’ and ‘will reverse a jury verdict only if the erroneous instruction affected a party’s substantial rights.’ ” Id. (quoting In re Prempro Prods. Liab. Litig., 514 F.3d 825, 829 (8th Cir.2008)). “ ‘[0]ur review is limited to whether the instructions, taken as a whole and viewed in the light of the evidence and applicable law, fairly and adequately submitted the issues [in the case] to the jury.’ ” Id. at 890-91 (internal marks omitted) (quoting In re Prempro Prod. Liab. Litig., 514 F.3d at 829). The district court considered Diane’s proposed instruction and, after substantial deliberation, explained, I have" }, { "docid": "23212753", "title": "", "text": "a threshold matter, we find that because Williams’s Rule 60(b) motion “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings,” the motion does not assert a “claim” that forces us to construe the motion as a second or successive habeas petition. Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. Accordingly, the district court had jurisdiction to consider the motion. Rule 45(b)(1) mandates that if a subpoena “commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.” The State does not dispute that it failed to serve Williams with its SDTs in compliance with the rule, but argues that its violation does not rise to the level of misconduct justifying relief from judgment. The district court agreed with this assessment, and so do we. To justify granting relief under Rule 60(b)(3), Williams must demonstrate, by clear and convincing evidence, “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005). We have held that “Rule 60(b)(3) ‘is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.’ ” Id. (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978)). Rule 60(b)(6) has a similarly high burden. Although we have described Rule 60(b)(6) as “ ‘a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses,’ ” id. at 642 (quoting Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir.1992) (internal quotation marks omitted)), we have noted that “ ‘[r]elief under this section is granted only if extraordinary circumstances are present.’ ” Id. (quoting Am. Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir.1993) (internal quotation marks omitted) (alteration in original)). “ ‘[T]he decision" }, { "docid": "8722245", "title": "", "text": "prevailing by unfair means. Johnson, 845 F.2d 1347. Even if we accept as true Appellant’s assertions of perjury, we would only set aside the decision of the trial court if we found that Appellee’s actions foreclosed the possibility that Appellant could “fully and fairly present her case.” Longden, 979 F.2d at 1103. In the case at hand, Appellant had independent access to information concerning the availability of aminoglycoside testing in January, 1987. Dr. Talmage’s affidavit proves that this information was not under the exclusive control of the Appellees. It is likely that a more focused effort by Appellant could have uncovered this evidence prior to trial. When a party is capable of fully and fairly presenting her case notwithstanding “fraud, misrepresentation, or other misconduct,” the trial court does not err when it denies a Rule 60(b)(3) motion. See Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978) (finding abuse of discretion where the alleged fraud concerned information within the exclusive purview of wrongdoer). As we noted above, Rule 60(b)(3) is not intended to correct those outcomes which may be factually incorrect, but rather to protect against a party prevailing by unfair means. Johnson, 845 F.2d 1347. Appellant has failed to produce clear and convincing evidence in support of her very serious charge of perjury and likewise fails to demonstrate that any perjured testimony prevented her from fully and fairly presenting her case. Accordingly, we find that the trial court did not abuse its discretion when it refused to grant her motion for relief from judgment. C. SANCTIONS Drs.- Frommer and Rivera have asked the court for sanctions for a frivolous appeal. Fed.R.App.P. 38. We find it indeed puzzling that Dr. Rivera filed a brief and sought sanctions in this court because he was not cast in judgment. It was therefore unnecessary for his attorney to file any briefs in this court and to attend oral argument. His motion for sanctions is denied based upon this fact which was conceded at oral argument. Dr. Frommer’s motion presents slightly different facts. He was cast in judgment, but Appellant failed to raise" }, { "docid": "19371079", "title": "", "text": "called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. Proc. 60(b)(3) (emphasis added). Because the basis for relief under Rule 60(b)(6) must be mutually exclusive from the other five grounds for relief under Rule 60(b), Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), CEATS argues that it is Faulkner’s — not Fish’s — failure to disclose the facts surrounding the Karlseng litigation that entitles it to relief under Rule 60(b)(6). a. Rule 60(b)(3) In the Fifth Circuit, the party seeking relief under Rule 60(b)(3) must prove by clear and convincing evidence “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005) (citing Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 772 (5th Cir.1995)). CEATS conceded at oral argument, however, that there is nothing in the record that shows it was not given a full and fair opportunity to present its case. See Oral Argument at 6:54, CEATS, Inc. v. Continental Airlines, Inc., 2013-1529, available at http://oralarguments.eafc.uscourts.gov/ default.aspx?fl=2013-1529.mp3 (“There is no evidence, and the 60(b)(3) standard clearly requires the movant to have to be able to show and demonstrate some impact on their ability to have a full and fair trial. And we were not given that opportunity, nor was there time. That’s why I think this case, however, can turn on 60(b)(6).”). Because we are constrained to the record, we affirm the district court’s finding that CEATS is not entitled to relief under Rule 60(b)(3). b. Rule 60(b)(6) Rule 60(b)(6) gives federal courts authority to relieve a party from a final judgment “upon such terms as are just.” Liljeberg, 486 U.S. at 863-64, 108 S.Ct. 2194; see Fed. R. Civ. Proc. 60(b) (“[T]he Court may relieve a party ... from a final judgment ... for ... (6) any other reason that justifies relief.”). In Liljeberg, the Supreme Court first held that the district court" }, { "docid": "23212754", "title": "", "text": "evidence, “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005). We have held that “Rule 60(b)(3) ‘is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.’ ” Id. (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978)). Rule 60(b)(6) has a similarly high burden. Although we have described Rule 60(b)(6) as “ ‘a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses,’ ” id. at 642 (quoting Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir.1992) (internal quotation marks omitted)), we have noted that “ ‘[r]elief under this section is granted only if extraordinary circumstances are present.’ ” Id. (quoting Am. Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir.1993) (internal quotation marks omitted) (alteration in original)). “ ‘[T]he decision to grant or deny relief under Rule 60(b) lies within the sound discretion of the district court and will be reversed only for abuse of that discretion.’ ” Id. at 638, 396 F.3d 632 (quoting Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.1996) (en banc) (citations omitted)). The district court did not abuse its discretion when it refused to grant Williams’s motion based on Rule 60(b)(3). Although the State candidly admits its failure to comply with Rule 45(b)(1), Williams has not demonstrated how the violation prevented him from fully and fairly presenting his case at his Atkins evidentiary hearing. He speculates that the SDTs may have turned up additional favorable information that the State kept from him, but the State reports that it has now sent Williams copies of the missing SDTs, most of which requested Williams’s own personal records or correspondence. The State sought information and documents that Williams had equal — if not greater — access to than the State. Williams has not convinced us, by clear and convincing evidence," }, { "docid": "14869051", "title": "", "text": "presenting his case. Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 772 (5th Cir.1995) (quotations and citations omitted). The moving party has the burden of proving the misconduct by clear and convincing evidence. Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). Unlike Rule 60(b)(2), 60(b)(3) does not require that the information withheld be such that it can alter the outcome of the case. Id. Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” Id. Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005) (emphasis added). The district court noted that the City learned of at least one of Perricone’s aliases and online postings several months before the NOPD Consent Decree was signed. After this information was revealed, the City continued negotiations on the Consent Decree. More aliases and postings were revealed after the NOPD Consent Decree was signed. Even now, however, the City does not identify any way that it was prevented from “fully and fairly presenting its case.” Although the City links Perricone to the inclusion of secondary-employment provisions in the NOPD Consent Decree, substantial independent evidence of problems related to the paid detail system was brought to the investigators by the public, NOPD officers, local judges, and federal law enforcement officials during the investigation of the NOPD. The City does not allege that Per-ricone’s misconduct caused the City to make a mistaken assessment of the need for reforms in the NOPD’s method of dealing with paid details. It only alleges that the reforms are not linked to constitutional violations and add to the cost of the NOPD Consent Decree. The online postings by Perricone and others present no basis to vacate the consent decree. 5. Procedural deficiencies tainted the district court’s approval process and further eroded the City’s consent. Finally, the City alleges that the district court erred by suspending the Federal Rules of Evidence and of Civil Procedure at the Fairness Hearing. The district court prohibited cross-examination of witnesses and entered into evidence nearly every document offered by the DOJ" }, { "docid": "9087876", "title": "", "text": "F.3d 632, 639 (5th Cir.2005) ). The movant must \"strictly\" satisfy these requirements. Longden v. Sunderman , 979 F.2d 1095, 1102 (5th Cir.1992). Scott cannot. The evidence he invokes is not \"new\"; he always had access to the document bearing his alleged signature, and his memory has always been his own. And even if, as Scott assumes, his duty of diligence began only eleven months after National sued him, he still had ample time to study his signature before entering a settlement agreement that expressly assumed the risk that he might later \"discover or appreciate\" material facts. See, e.g. , Gov't Fin. Servs. One LP v. Peyton Place, Inc. , 62 F.3d 767, 771-72 (5th Cir.1995) (no Rule 60(b)(2) relief where the movant failed to show lack of prior access to supposedly \"new\" documents). Rather than show diligence, Scott acknowledges a \"degree of negligence.\" Cf. Thermacor , 567 F.3d at 744 (no Rule 60(b)(2) relief where the movant failed to explain why new evidence could not have been timely obtained). He does not satisfy Rule 60(b)(2). For its part, Rule 60(b)(3) is inapposite. It targets judgments that were \"unfairly obtained,\" not those that are \"factually incorrect.\" Hesling , 396 F.3d at 641. The movant must muster clear and convincing evidence (1) \"that the adverse party engaged in fraud or other misconduct\" and (2) \"that this misconduct prevented the moving party from fully and fairly presenting his case.\" Id. Scott, however, does not accuse National of wrongdoing. Nor is Rule 60(b)(4) relevant. This provision relieves parties from a judgment if the trial court \"acted in a manner inconsistent with due process of law,\" Carter v. Fenner , 136 F.3d 1000, 1006 (5th Cir.1998) (quoting N.Y. Life Ins. Co. v. Brown , 84 F.3d 137, 143 (5th Cir.1996) ), or issued a judgment that, \"from its inception, was a complete nullity and without legal effect,\" id. (quoting United States v. Zima , 766 F.2d 1153, 1159 (7th Cir.1985) ). The parties' Rule 41 dismissal checks neither of those boxes. So, too, for Rule 60(b)(5). On this score, Scott must show that \"the" }, { "docid": "15556576", "title": "", "text": "Rule 60(b) states: Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of “an adverse party;” Rule 133 and Rule 60 are both Rules that are applied when final decisions can be reopened for fraud. Rule 60(b) has been interpreted to mean fraud in the proceedings. See, e.g., Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983) (“To prevail [under Rule 60(b)(3) ], the movant must establish that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving party from fully and fairly presenting his case.”); Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978) (“Rule [60(b)(3)] is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.”); see also Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 88 L.Ed. 1250 (1944) (“The inherent power of a federal court to investigate whether a judgment was obtained by fraud, is beyond question.’). Because the purpose of Rule 133 is similar to that of Rule 60(b), we conclude, therefore, that Rule 133 was not applicable to the only type of fraud alleged by Mr. Palmer, fraud in the contract. CONCLUSION We hold that we lack jurisdiction over this appeal because Mr. Palmer has not made a non-frivolous allegation of fraud in the board proceedings, the only type of fraud for which appeals to this court are permitted under section 9(d) of the Contract Disputes Act of 1978, 41 U.S.C. § 608(d). The appeal is therefore DISMISSED. COSTS Appellant to bear costs. . Because we are dismissing this appeal for lack of jurisdiction, we do not address the issue of whether Mr. Palmer may claim on appeal the costs of labor, which he did not claim before the CO or the GSBCA. Nor do we address the issue of whether Mr. Palmer" } ]

[ { "docid": "23680585", "title": "", "text": "excused leave complies with these purposes. B. The district court also rendered summary judgment for Phillips because the plaintiffs had signed releases covering the allegations made in their complaint. The plaintiffs filed a cross-motion for summary judgment contesting the validity of the releases. The district court properly granted Phillips’s motion, thereby rejecting plaintiffs’. Normally the release of federal claims is governed by federal law. See, e.g., O’Hare v. Global Natural Resources, Inc., 898 F.2d 1015, 1017 (5th Cir.1990) (Age Discrimination in Employment Act (“ADEA”)); Rogers v. General Elec. Co., 781 F.2d 452, 454 (5th Cir.1986) (title VII of the Civil Rights Act of 1964). Public policy favors voluntary settlement of claims and enforcement of releases, Rogers, 781 F.2d at 454, but a release of an employment or employment discrimination claim is valid only if it is “knowing” and “voluntary,” Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15, 94 S.Ct. 1011, 1022 n. 15, 39 L.Ed.2d 147 (1974). Once a party establishes that his opponent signed a release that addresses the claims at issue, received adequate consideration, and breached the release, the opponent has the burden of demonstrating that the release was invalid because of fraud, duress, material mistake, or some other defense. We examine the totality of circumstances to determine whether the releasor has established an appropriate defense. O’Hare, 898 F.2d at 1017. 1. Each original plaintiff signed a release shortly after his or her termination of employment. The releases stated that signing the release was a condition to participation in the company’s enhanced supplemental layoff pay plan, advised the employee to consult an attorney, gave ample time to consider the release, and specifically covered all claims relating to the individual’s employment or layoff. The Bartlesville plaintiffs signed similar releases. The requirements of WARN pertain to an individual’s employment and termination, issues addressed in the releases. Phillips provided enhanced benefits for those employees who signed the releases. These benefits were in addition to the basic severance plan benefits that the employees would have received regardless of whether they had signed the releases. The original plaintiffs are making claims" } ]

[ { "docid": "16774972", "title": "", "text": "162 F.3d 619 (11th Cir.1998). Id. In that case, which involved the same parties and same release, except that the parties agreed that the release was to be construed under Georgia law, the Eleventh Circuit concluded that the fraud claims were barred. Id. at 625 (“[The] execution of such all-encompassing releases prohibits [plaintiffs] from suing defendants [for fraudulent inducement].”). Rather than continuing to apply this decision to the same releases (except for the Delaware choice-of-law provision), the Eleventh Circuit examined the Delaware case and determined that under that case, it had to analyze the merit of the claims under Florida law. DuPont makes much of the fact that in Florida Evergreen I, I disagreed with the Delaware court’s differentiation between product liability claims and settlement fraud claims. (Post-Hearing Brief at 3, citing Florida Evergreen I, 135 F.Supp.2d at 1293). Specifically, I concluded that the Delaware court did not examine the accusations of fraud in the underlying cases (see id.), and the Eleventh Circuit affirmed my conclusion (Green Leaf, 341 F.3d at 1304). This conclusion, however, simply explains that Florida law governs my substantive analysis of the fraud claims. However, whether these Growers could file their fraud claims despite the release is a question of Delaware law. As the Eleventh Circuit explained in Green Leaf, and as I explain in the next section, the Delaware court answered that the release does not bar fraud claims. (b) The Delaware Supreme Court Ruling Even if the Eleventh Circuit’s discussion was merely considered dicta and not the law of the case (see Post-Hearing Brief at 5 (arguing that the Eleventh Circuit’s statements regarding the Delaware case are dicta)), the Delaware case itself holds that the releases at issue do not bar fraud. In E.I. Du Pont De Nemours & Co. v. Florida Evergreen Foliage, the court examined a question I certified to it in the context of a motion to dismiss filed by DuPont in Case No. 98-2242-CIV-GOLD, one of the Plaintiff-Growers’ cases. See E.I. DuPont De Nemours & Co. v. Florida Evergreen Foilage, 744 A.2d 457; Order and Certificate of Question of Law" }, { "docid": "16774968", "title": "", "text": "time of settlement and thus never intended to release them. Ferraro Plaintiffs argue that the release does not bar fraud claims. Searcy Denney argues in its Opposition that (1) the settlement agreements do not bar fraud claims because the agreements do not specifically refer to such claims, and (2) whether the fraud claims have merit is irrelevant because under Delaware law, the focus is on what claims are in the parties’ contemplation at the time of the release, not on whether these claims turn out to be merit-less based on subsequent court decisions. (2) Analysis With the exception of Plaintiff-Growers in Case No. 99-2308 and one set of Ferraro Defendants (Jonathan L. Moore and Patricia L. Moore d/b/a Tomoka Greens International) in Case No. 99-7229, the remaining growers’ releases contain a provision stating that the release shall be governed and construed in accordance with Delaware law. (Statement of Material Facts ¶ 50). Plaintiff-Growers in Case No. 99-2308 and Jonathan L. Moore and Patricia L. Moore d/b/a Tomoka Greens executed releases containing Florida choice of law clauses. (Id.). Thus, in order to determine whether the growers breached the releases, I have to examine Delaware law and Florida law. I will begin with Delaware law because the majority of Growers executed releases governed by Delaware law. (a) The Growers Did Not Breach the Releases Governed by Delaware Law. The growers did not breach the releases governed by Delaware law because (1) under Delaware law, the releases do not bar fraud claims, and (2) all the growers’ claims are fraud claims. Accordingly, DuPont’s Motion for Summary Judgment with respect to these growers is denied. (i) The Releases Do Not Bar Fraud Claims. In order for me to examine the releases governed by Delaware law, it is necessary for me to analyze the Delaware Supreme Court’s opinion regarding these releases in E.I. DuPont De Nemours & Co. v. Florida Evergreen Foilage, 744 A.2d 457 (Del.1999). When beginning its analysis in Green Leaf, the Eleventh Circuit discussed E.I. Du Pont De Nemours & Co. v. Florida Evergreen Foliage. These discussions provide a framework for my" }, { "docid": "23370644", "title": "", "text": "right is not lightly to be inferred.”). The interpretation and validity of a release of claims under Title VII is governed by federal law. Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir.1994); Rogers, 781 F.2d at 454. A release of a Title VII claim is valid only if it is “knowing and voluntary.” Rogers, 781 F.2d at 454. In determining whether a release was knowingly and voluntarily executed, this court has adopted a “totality of the circumstances” approach. See O’Hare v. Global Natural Res., 898 F.2d 1015, 1017 (5th Cir.1990). The employer bears the burden of establishing that its former employee “signed a release that addresses the claims at issue, received adequate consideration, and breached the release.” Williams, 23 F.3d at 935. It is then incumbent upon the former employee to “demonstrate] that the release was invalid because of fraud, duress, material mistake, or some other defense.” Id. To determine whether the former employee has met the burden of establishing a defense to the validity of the release, we examine the following relevant factors: (1) the plaintiffs education and business experience, (2) the amount of time the plaintiff had possession of or access to the agreement before signing it, (3) the role of [the] plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was represented by or consulted with an attorney, and (6) whether consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law. O’Hare, 898 F.2d at 1017. It is undisputed that Smith signed a release dated November 12, 1996. The language of the Separation Agreement read, in pertinent part, as follows: This separation agreement and general release is made and entered into by and between Lori Smith and AMEDISYS, Inc. and/or its subsidiaries (hereafter referred to as AMEDISYS). In consideration of your agreement to abide by the below listed issues, AMEDISYS agrees to continue your salary for a period of two (2) months following your resignation on September 28, 1996. You will receive your salary" }, { "docid": "16774969", "title": "", "text": "clauses. (Id.). Thus, in order to determine whether the growers breached the releases, I have to examine Delaware law and Florida law. I will begin with Delaware law because the majority of Growers executed releases governed by Delaware law. (a) The Growers Did Not Breach the Releases Governed by Delaware Law. The growers did not breach the releases governed by Delaware law because (1) under Delaware law, the releases do not bar fraud claims, and (2) all the growers’ claims are fraud claims. Accordingly, DuPont’s Motion for Summary Judgment with respect to these growers is denied. (i) The Releases Do Not Bar Fraud Claims. In order for me to examine the releases governed by Delaware law, it is necessary for me to analyze the Delaware Supreme Court’s opinion regarding these releases in E.I. DuPont De Nemours & Co. v. Florida Evergreen Foilage, 744 A.2d 457 (Del.1999). When beginning its analysis in Green Leaf, the Eleventh Circuit discussed E.I. Du Pont De Nemours & Co. v. Florida Evergreen Foliage. These discussions provide a framework for my application of the Delaware case. Accordingly, I will review the Eleventh’s Circuit’s analysis of the Delaware case before describing that case and its holdings in detail. (a) The Eleventh Circuit’s Discussion of the Delaware Opinion The law of the case “doctrine provides that ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’” Murphy v. F.D.I.C., 208 F.3d 959, 965 (11th Cir.2000), citing Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). This doctrine applies to the Eleventh Circuit’s discussion -of the Delaware opinion as it relates to Case No. 98-2256. For the remaining cases, the Eleventh Circuit’s discussion is binding precedent. The Eleventh Circuit begins its Green Leaf analysis with an explanation of the Delaware Supreme Court opinion. The Eleventh Circuit stated that the Delaware Supreme Court “held that the release did not bar Plaintiffs’ fraudulent inducement claims.” Green Leaf, 341 F.3d at 1301, citing Florida Evergreen Foliage, 744 A.2d at 461. The" }, { "docid": "19364895", "title": "", "text": "waiver is unambiguous, it is unnecessary to create a distinct federal body of law to interpret plaintiff’s release of federal rights. However, consonant with the Supreme Court’s directive in Alexander, some inquiry must be made to determine that plaintiff’s assent to the unambiguous language was knowing and voluntary. This Court has defined the “knowing” requirement in the context of Title VII releases to mean “ ‘done voluntarily and purposely, and not because of a mistake or accident.’ ” Taylor, 793 F.2d at 863, citing United States v. Jones, 696 F.2d 479, 493 (7th Cir.1982), certiorari denied, 462 U.S. 1106, 103 S.Ct. 2453, 77 L.Ed.2d 1333 (1983). Although the district judge did not expressly determine whether the release was given knowingly and voluntarily, the undisputed facts contained in the record before this Court are sufficient to satisfy the above standard. Decisions involving similar facts are in accord that a plaintiff who executes a release within the context of a settlement pursuant to the advice of independent counsel is presumed to have executed the document knowingly and voluntarily absent claims of fraud or duress. Any other principle would enable plaintiffs to avoid their obligations entered into on the advice of their attorneys by claiming they did not believe they were releasing their rights, despite the clear language of the waivers. For the purposes of this case, where a plaintiff is represented by counsel who actively negotiates the release, plaintiff must be found to have executed the release or settlement voluntarily and knowingly, unless vitiating circumstances such as fraud or duress existed to nullify plaintiffs assent to the settlement. The fact that plaintiffs counsel may have inaccurately conveyed the effect of the release or failed to draft language adequate to protect plaintiffs Title VII rights may be remedied through a malpractice action, but not through judicial interpretation of plaintiffs subjective intent. Taylor, 793 F.2d at 864. An inquiry into the subjective intent of the waiving party, as suggested here, would unduly hamper the voluntary settlement goals of Title VII (42 U.S.C. § 2000e-5(b)) by enabling plaintiffs to avoid the consequences of plain language" }, { "docid": "6194833", "title": "", "text": "of the dispute were described previously. See Eddins v. Excelsior ISD, 1997 WL 470353 (E.D.Tex. Aug. 6, 1997). Ultimately, plaintiffs requested administrative due process hearings wherein they challenged the children’s placements and services provided by Excelsior ISD through the Shelby County Special Education Cooperative. See id. at *5. Plaintiffs also sought relief in the nature of monetary compensation and injunc-tive relief. See id. at *7. Specifically, plaintiffs sought a school funding cut-off; termination of personnel; a change of the executive administrator for the school; an apology from the school board at an open session; compensatory damages; and attorney’s fees. See id. At a prehearing conference, the Texas Education Agency (TEA) hearing officer concluded that the compensation and in-junctive claims of plaintiffs were outside her jurisdiction. See id. at *5-6. Thus, the formal administrative hearings concerned only appropriate educational classifications and services for the two children. Ultimately, the parties reached agreement on these issues and announced settlement. See id. at *5. The TEA hearing officer entered judgments pursuant to the settlements. Each judgment required Excelsior ISD to make monetary payments to reimburse plaintiffs for expenses incurred, and to take prospective action regarding special education services. Plaintiffs subsequently executed written settlement agreements and releases that acknowledge receipt of Excelsior’s monetary payments. (See Def.’s Mot. for Summ.J., Exs. C, D, E, and F.) The releases executed by plaintiffs contained language limiting the scope of their releases to the confines of the TEA administrative orders. Thus, it was apparent from the outset that plaintiffs did not view the TEA judgments as complete relief. The present litigation ensued. In the instant cases, plaintiffs contend that Excelsior ISD did not honor its settlement agreements as embodied in the TEA judgments. Thus, they sue to enforce the provisions of the TEA administrative judgments. Second, they sue to enforce federally-guaranteed educational rights. Third, they sue Excelsior ISD and other defendants for their alleged previous violations of plaintiff minors’ federal civil rights, i.e., under general Reconstruction civil rights statutes. Finally, plaintiffs seek to append various state law causes of action for breach of contract (settlement agreements), slander, wrongful, death," }, { "docid": "11177232", "title": "", "text": "Dro-gosch was finally released the next day, November 11, 2004, after a judge issued an order of discharge. B. Procedural background In April 2005, Drogosch filed a federal lawsuit pursuant to 42 U.S.C. § 1983 against Agent Metcalf, Officer Lazarski, the other arresting agents, Wayne County, and two other county officials. The district court eventually dismissed Drogosch’s claims against all of the defendants except for Metcalf. It specifically found that the agents’ arrest of Drogosch was valid because they reasonably believed that Dro-gosch was violating the conditions of his probation, and the court accordingly dismissed the unlawful search and arrest claims against Metcalf on the basis of qualified immunity. But the court denied summary judgment on the claim that Metcalf had failed to promptly bring Drogosch before a judge after the arrest. It concluded that a genuine issue of material fact existed regarding whether Metcalfs action in filing the parolee-detainer form, and thereby failing to promptly present Drogosch to a judge following the arrest, was reasonable under the circumstances. Metcalf later filed a motion for reconsideration, which the court denied. II. ANALYSIS A. Framework for qualified-immunity analysis Section 1983 provides a cause of action to those deprived of a constitutional right by law enforcement officers acting under the color of state law. Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000). A law enforcement officer’s key defense to a § 1983 action is encapsulated in the concept of qualified immunity. Analysis of the qualified-immunity defense generally proceeds under the two-step, sequential inquiry articulated by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The threshold question that the court must address is whether, “in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right[.]” Id.; see also Charvat v. E. Oh. Reg’l Wastewater Auth., 246 F.3d 607, 616 (6th Cir.2001) (“First, the court must ask whether the plaintiff in the civil action has demonstrated the violation of a constitutionally protected right.”). Evaluating the defense of qualified immunity on a" }, { "docid": "10844609", "title": "", "text": "terminate IAM-represented employees on April 3, 1998, but actually terminated them on March 1,1998. IAM’s argument is unavailing for two reasons. First, the district court correctly found that the separation payments made to individual Mexicana employees were not an obligation under the collective bargaining agreement and that the separation payments constituted valid consideration to support the individual employee’s releases. Under 29 U.S.C. § 2104(a)(2)(B), payments “required by any legal obligation” cannot off-set WARN Act liability. IAM contends that the separation payment was an obligation under the collective bargaining agreement and that Mexi-cana therefore violated the WARN Act. However, the extra benefits contained in the separation agreement exceeded any pre-existing legal duty contained in the collective bargaining agreement. Employees could have received the severance benefits regardless of their signing the releases. The separation payments went beyond the basic severance plan benefits under the collective bargaining agreement, and thus constituted valid consideration for the release. See Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir.), cert denied, 513 U.S. 1019, 115 S.Ct. 582, 130 L.Ed.2d 497 (1994), (holding that once a party establishes that his opponents knowingly and voluntarily signed a release that addresses the claims at issue, received adequate consideration, and breached the release, the opponent has the burden of demonstrating that the release was invalid because of fraud, duress, material mistake, or some other defense). There is no evidence that the releases were obtained by fraud, duress or material mistake, and therefore the elements of a valid release are satisfied. Second, the district court correctly held that the releases, which refer to “all matters discussed in negotiations,” constitute a valid waiver of the WARN Act claims at issue because the negotiations included discussions about the WARN Act. Neither the WARN Act nor the common law require that the release expressly mention the WARN Act for the releases to be binding. See Williams, 23 F.3d at 936. The releases encompass all claims related to union member layoffs, and any WARN Act claim would be a claim related to union member layoffs. Thus, the affected employees waived their WARN Act" }, { "docid": "23370643", "title": "", "text": "Cameron County, Tex., 274 F.3d 269, 278 (5th Cir.2001). A. On appeal, Smith argues that the trial court erroneously granted summary judgment on her claims against Amedisys under Title VII and Louisiana employment discrimination statutes. Thus, we must address the trial court’s finding that the Separation Agreement was valid and that Smith released Amedisys from her claims under Title VII and Louisiana employment discrimination statutes. Because we find that the Separation Agreement is binding regarding Smith’s Title VII and Louisiana employment discrimination claims, we conclude that the trial court correctly granted Amedisys summary judgment on these claims. 1. “A general release of Title VII claims does not ordinarily violate public policy. To the contrary, public policy favors voluntary settlement of employment discrimination claims brought under Title VII.” Rogers v. Gen. Elec. Co., 781 F.2d 452, 454 (5th Cir.1986) (citations omitted). Nonetheless, we must closely scrutinize a release waiving rights under Title VII because of their remedial nature. See Watkins v. Scott Paper Co., 530 F.2d 1159, 1172 (5th Cir.1976) (“A waiver of a federal remedial right is not lightly to be inferred.”). The interpretation and validity of a release of claims under Title VII is governed by federal law. Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir.1994); Rogers, 781 F.2d at 454. A release of a Title VII claim is valid only if it is “knowing and voluntary.” Rogers, 781 F.2d at 454. In determining whether a release was knowingly and voluntarily executed, this court has adopted a “totality of the circumstances” approach. See O’Hare v. Global Natural Res., 898 F.2d 1015, 1017 (5th Cir.1990). The employer bears the burden of establishing that its former employee “signed a release that addresses the claims at issue, received adequate consideration, and breached the release.” Williams, 23 F.3d at 935. It is then incumbent upon the former employee to “demonstrate] that the release was invalid because of fraud, duress, material mistake, or some other defense.” Id. To determine whether the former employee has met the burden of establishing a defense to the validity of the release, we examine the following" }, { "docid": "23680588", "title": "", "text": "Stroman v. West Coast Grocery Co., 884 F.2d 458, 461 (9th Cir.1989), cert. denied, 498 U.S. 854, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990); Franz v. Iolab, Inc., 801 F.Supp. 1537, 1543 (E.D.La.1992) (holding that a release of all claims barred wrongful discharge and ERISA claims). Plaintiffs also argue that the waivers did not comply with the Older Workers Benefit Protection Act (“OWBPA”), 29 U.S.C. § 626(f). Plaintiffs have asserted no age discrimination claim, and their proffered analogy between WARN and the ADEA does not survive scrutiny. The OWBPA places specific requirements on waivers of age discrimination claims in order for them to be considered knowing and voluntary. This statute is a change from the common law, and there is no similar obligation imposed on employers under WARN. Williams contends that the waivers are invalid under a totality of the circumstances test. She claims that the combination of five factors makes the waivers invalid, but she identifies no precedent suggesting that these factors are dispositive. Williams carried the burden to demonstrate that there was a genuine issue of material fact on a defense to the validity of the releases. She was obligated to produce some evidence of fraud, duress, or other basis for holding the release invalid. See Widener v. Arco Oil & Gas Co., 717 F.Supp. 1211, 1215 (N.D.Tex.1989). She has not done so, thus summary judgment was appropriate. Even if we accept Williams’s statement of the totality of circumstances test, she cannot prevail. She identifies several elements to consider: (1) a plaintiffs education and business experience; (2) the role of each plaintiff and class member in deciding the terms of the release; (3) the clarity-of the agreement and all related documents referred to in the releases; (4) whether each plaintiff and class member was represented by or consulted with an attorney; and (5) the amount of time each plaintiff and class member had possession of or access to the release before signing it. Concerning the plaintiffs’ education and business experience, there no evidence suggesting that they could not read or understand the releases. The cases relied upon by" }, { "docid": "23370650", "title": "", "text": "in exchange for signing the Separation Agreement. Smith brought a Title VII claim against Amedisys, which is a matter addressed in the Separation Agreement. Thus, Amedi-sys has met its initial of burden of proof regarding Smith’s waiver of her Title VII claims. Smith does not assert that the Separation Agreement was obtained by fraud or duress. She does contend, however, that genuine issues of material fact exist as to whether the release was knowing and voluntary. Smith claims that the release is invalid because the Separation Agreement did not mention “Title VII” or “federal claims.” This argument is meritless. This Court has recognized that “[i]n determining whether a release was knowingly and voluntarily executed, federal law requires that a valid waiver is not to be ‘lightly inferred.’ ” Rogers, 781 F.2d at 454. There is no obligation, however, under Title VII or federal common law, that a release must specify Title VII or federal causes of action to constitute a valid release of a Title VII claim. See Stroman v. W. Coast Grocery Co., 884 F.2d 458, 461 (9th Cir.1989) (holding that a release “need not specifically recite [Title VII] in order to be effective”); Pilon v. Univ. of Minn., 710 F.2d 466, 467-68 (8th Cir.1983) (holding that even though a general release of “any and all” claims did not specifically mention Title VII, “the. wording of the release in the present case is clear and leaves no doubt that all claims potentially held by Pilón are waived”); see also Int’l Ass’n. of Machinists & Aerospace Workers v. Compania Mexicana de Aviacion, S.A. de C.V., 199 F.3d 796, 798 (5th Cir.2000) (Worker Adjustment and Retraining Notification Act); Williams, 23 F.3d at 935 (same). Moreover, contrary to Smith’s contention, we agree with the trial court that an analysis of the totality of the circumstances demonstrates that Smith has not raised a genuine issue of material fact as to whether she knowingly and voluntarily executed the release. First, Smith admits that she is a high school graduate, she completed a business administration course at a business college, and she took a couple" }, { "docid": "10844610", "title": "", "text": "497 (1994), (holding that once a party establishes that his opponents knowingly and voluntarily signed a release that addresses the claims at issue, received adequate consideration, and breached the release, the opponent has the burden of demonstrating that the release was invalid because of fraud, duress, material mistake, or some other defense). There is no evidence that the releases were obtained by fraud, duress or material mistake, and therefore the elements of a valid release are satisfied. Second, the district court correctly held that the releases, which refer to “all matters discussed in negotiations,” constitute a valid waiver of the WARN Act claims at issue because the negotiations included discussions about the WARN Act. Neither the WARN Act nor the common law require that the release expressly mention the WARN Act for the releases to be binding. See Williams, 23 F.3d at 936. The releases encompass all claims related to union member layoffs, and any WARN Act claim would be a claim related to union member layoffs. Thus, the affected employees waived their WARN Act claims when they accepted valid releases in exchange for the enhanced separation package. See id. at 935 (stating that releases signed by workers in connection with their layoffs, pursuant to which workers, in return for payment of additional benefits agreed to release their employer from all claims relating to the time of their employment or their layoffs, were valid and enforceable and precluded workers from bringing any claims for their employer’s alleged failure to give proper notice of their layoffs under the WARN Act). CONCLUSION Accordingly, the district court’s granting of summary judgment in favor of Mexicana is AFFIRMED. The district court’s denial of IAM’s motion for summary judgment is AFFIRMED, and IAM’s claims are dismissed with prejudice. . As the district court properly noted: \"Under die separation package, employees received payments based on years of service, payment for accumulated sick leave, continued health and life insurance benefits, travel benefits, and other incentives. On the other hand, under the collective bargaining agreement, employees who were terminated as the result of a mass lay-off would have" }, { "docid": "141460", "title": "", "text": "that the court's decision turned on his retention of benefits, Long submitted a brief in which he offered to tender the money. This brief and the court’s order granting summary judgment were docketed the same day. Apparently, they \"crossed in the mail.” .Long also asks that we determine whether the release at issue waived future claims in violation of the OWBPA. Because the district court found it unnecessary to determine whether the release did, in fact, fail to comply with the OWBPA, our consideration of this issue would be premature. Our disposition of this appeal will require that the district court assess the merits of this argument, as well as Long's other allegations of statutory deficiency. . The decision in Ponzoni does not control the outcome of this case as our affirmances, without opinion, of district court decisions are not binding precedent. See Ransom v. Marrazzo, 848 F.2d 398, 411 (3d Cir.1988). . This language was adopted by reference in S.Rep. No. 263, 101st Cong.2d Sess. 15 (1990). . On January 9, 1997, the Court of Appeals for the Sixth Circuit issued its decision in Raczak v. Ameritech Corp., 103 F.3d 1257 (6th Cir.1997). Two panel members, on divergent grounds, agreed that the plaintiffs were not precluded from pursuing an action under the ADEA despite having executed waivers deficient under the OWBPA and retained payments made pursuant to these waivers. One of these panel members adopted the ratification analysis set forth in Oberg while the other concurred in the result only, concluding that \"there was not a total failure of consideration when the ADEA claim was instituted without plaintiffs tendering back benefits received ...” and \"reserv[ing] judgment as to whether a release limited to ADEA claims would require a different result.” Id. at 1271. The remaining panel member adopted an analysis similar to that undertaken by the district court in this case. . This decision, fractured though it is, means that the appellate courts, prior to our opinion, are evenly divided on the issue of tender back. . .The common law doctrine of ratification results in the enforcement of \"a" }, { "docid": "22161454", "title": "", "text": "informed”) (citation omitted). We consider such factors as whether (1) the language of the agreement was clear and specific; (2) the consideration given in exchange for the waiver exceeded the relief to which the signer was already entitled by law; (3) the signer was represented by counsel; (4) the signer received an adequate explanation of the document; (5) the signer had time to reflect upon it; and (6) the signer understood its nature and scope. Ciñllo, 862 F.2d at 451; Coventry, 856 F.2d at 523. We may also look to whether there is evidence of fraud or undue influence, or whether enforcement of the agreement would be against the public interest. Coventry, 856 F.2d at 522-23. Given the fact-bound nature of these questions, many of which go to a person’s state of mind, summary judgment holding that execution of a release was voluntary and knowing may be inappropriate. We are aware of only a few reported decisions concerning § 1983 actions premised on IDEA violations and none discussing whether contract principles or a heightened standard based on the totality of the circumstances should govern review of settlement agreements. Upon examination of the dynamics of an IDEA settlement, however, we find reason to consider employing a more heightened standard. Where a school is resistant, parents seeking special services for their disabled children may be disinclined to delay the start of those services during years of administrative and judicial proceedings. Indeed, a waiver of fees or possible civil rights claims may seem a small price for the immediate commencement of services for a young child just beginning school. Accordingly, while we do not hold that settlement agreements which include a waiver of related claims in the IDEA context are per se invalid, we will apply the more searching standards reserved for waivers of civil rights claims, rather than general contract principles. Review of the relevant factors here leads us to conclude that summary judgment in favor of defendants on the basis of the April 1993 settlement in E.J. I was inappropriate. First, there is at least a dispute of fact whether the" }, { "docid": "6169631", "title": "", "text": "there is no genuine issue of material fact in dispute, we then must determine if the substantive law was correctly applied by the district court. See id. II. DISCUSSION In this appeal, we must resolve whether appellants’ claims are barred by the terms of the releases they executed upon their separation from Coors. We begin by addressing appellants’ claims under the ADEA. A. APPELLANTS’ADEA CLAIMS 1. Knowing and Voluntary Release Execution Appellants argue first that the district court erred in holding that the releases, signed by the appellants when they accepted either the EVSP or EERW, were knowing and voluntary under 29 U.S.C. § 626, the Older Workers Benefit Protec tion Act (“OWBPA”). Specifically, appellants argue that the waivers were not knowing and voluntary because of fraud, duress, and mutual mistake. Coors, however, argues that the releases are valid because they comply with the express requirements of the OWBPA. Section 201 of the OWBPA prohibits the waiver of ADEA claims if the waiver is not “knowing and voluntary.” 29 U.S.C. § 626(f)(1). The statute provides that an ADEA waiver is not knowing and voluntary unless, “at a minimum,” it complies with the requirements set out in the statute. Id. The statutory requirements are summarized as follows: (1) the release must be written in a manner calculated to be understood by the employee signing the release, or by the average individual eligible to participate; (2) the release must specifically refer to claims arising under the ADEA; (3) the release must not purport to encompass claims that may arise after the date of execution; (4) the employer must provide consideration for the waiver or release of ADEA claims above and beyond that to which the employee would otherwise already be entitled; (6)the employee must be advised in writing to consult with an attorney prior to executing the agreement; (6) the employee must be given at least 45 days to consider signing if the incentive is offered to a group; (7) the release must allow the employee to revoke the agreement up to 7 days after signing; and (8) if the release is" }, { "docid": "6194834", "title": "", "text": "to make monetary payments to reimburse plaintiffs for expenses incurred, and to take prospective action regarding special education services. Plaintiffs subsequently executed written settlement agreements and releases that acknowledge receipt of Excelsior’s monetary payments. (See Def.’s Mot. for Summ.J., Exs. C, D, E, and F.) The releases executed by plaintiffs contained language limiting the scope of their releases to the confines of the TEA administrative orders. Thus, it was apparent from the outset that plaintiffs did not view the TEA judgments as complete relief. The present litigation ensued. In the instant cases, plaintiffs contend that Excelsior ISD did not honor its settlement agreements as embodied in the TEA judgments. Thus, they sue to enforce the provisions of the TEA administrative judgments. Second, they sue to enforce federally-guaranteed educational rights. Third, they sue Excelsior ISD and other defendants for their alleged previous violations of plaintiff minors’ federal civil rights, i.e., under general Reconstruction civil rights statutes. Finally, plaintiffs seek to append various state law causes of action for breach of contract (settlement agreements), slander, wrongful, death, lost wages, and injunctive relief requiring termination of school administrators, replacement of teaching personnel, and an open-meeting apology from one school defendant’s Board of Trustees. Proceedings Although plaintiffs’ amended complaints alleged multiple claims against multiple defendants, the court has narrowed issues and parties for trial. In sum, all defendants except Excelsior ISD have been dismissed. (See Docket Nos. 86 and 109.) All federal claims against Excelsior ISD have been dismissed except for an action under 42 U.S.C. § 1983 for enforcement of the TEA administrative orders. (See Docket No. 86.) Thus, the remaining claims are the single Section 1983 action just mentioned, and assorted state law claims that plaintiffs seek to append under the court’s supplemental jurisdiction. Supplemental Jurisdiction Title 28 United States Code Section 1367 provides that: “district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Section 1367" }, { "docid": "6194832", "title": "", "text": "pleadings do not allege state law claims. It is therefore ORDERED that plaintiffs’ objections are OVERRULED. It is further ORDERED that the report and recommendation of the magistrate judge is ADOPTED. An order declining to exercise supplemental jurisdiction over plaintiffs’ alleged state law tort claims will be entered separately. REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: SUPPLEMENTAL JURISDICTION HINES, United States Magistrate Judge. These consolidated cases are referred to the undersigned United States magistrate judge for consideration of pretrial matters. The parties have raised the issue whether the court should exercise supplemental jurisdiction over state law causes of action over which it does not have original jurisdiction. This report addresses that issue. Nature of Suit These consolidated actions emerge from a dispute over educational rights of two children, “Mary W.” and “Christy McD.,” who resided in Excelsior Independent School District (Excelsior ISD). Both children allegedly have learning disabilities and require special education services. Excelsior ISD sought to provide those services through a cooperative known as Shelby County Special Education Cooperative. The original boundaries of the dispute were described previously. See Eddins v. Excelsior ISD, 1997 WL 470353 (E.D.Tex. Aug. 6, 1997). Ultimately, plaintiffs requested administrative due process hearings wherein they challenged the children’s placements and services provided by Excelsior ISD through the Shelby County Special Education Cooperative. See id. at *5. Plaintiffs also sought relief in the nature of monetary compensation and injunc-tive relief. See id. at *7. Specifically, plaintiffs sought a school funding cut-off; termination of personnel; a change of the executive administrator for the school; an apology from the school board at an open session; compensatory damages; and attorney’s fees. See id. At a prehearing conference, the Texas Education Agency (TEA) hearing officer concluded that the compensation and in-junctive claims of plaintiffs were outside her jurisdiction. See id. at *5-6. Thus, the formal administrative hearings concerned only appropriate educational classifications and services for the two children. Ultimately, the parties reached agreement on these issues and announced settlement. See id. at *5. The TEA hearing officer entered judgments pursuant to the settlements. Each judgment required Excelsior ISD" }, { "docid": "8389226", "title": "", "text": "for breach of contract, and its claim that prejudgment interest could not be handled on a class-wide basis. In connection with Exxon’s release defense, I concluded that Exxon’s form releases did not bar the Class Dealers’ claims based on two grounds. First, I held that if the jury determined, through special interrogatories, that Exxon breached its good faith obligations to its dealers under its sales agreements, and that such breach was fraudulently concealed from the class, then the Releases may not, in good faith, be uniformly enforced against an involuntary waiver of those rights. Id. at 681-684. Second, as an alternative ground, I concluded that the plain meaning of the terms “trade accounts” and “reimbursements,” which appear in the vast majority of the releases, unambiguously, and, as a matter of law, except Plaintiffs’ claims from the releases. Id. at 681 n. 24. I also concluded, as a matter of law, that releases executed after certification of the Plaintiff-Class cannot bar those Plaintiffs from participating in the litigation of this action. Id. at 685. The sole exception was for releases executed in Delaware. Even as to those releases, I concluded that they were not enforceable against the dealers that included the “exception” language, see id. at 681 n. 24, but would be enforceable, if at all, against those Delaware dealers whose releases contain no such qualifying language (i.e. the Category-four releases). Id. at 684 n. 26. Accordingly, the issue of releases was finally and unequivocally resolved by my order. Notwithstanding, Exxon again raises the same issue in its affirmative defenses filed during the claims administration process. In connection with prejudgment interest, I surveyed the applicable state laws and concluded, pre-trial, that the Plaintiffs were entitled to prejudgment interest in the event of a jury verdict. See id. at 688 (“[T]he entitlement and accrual periods of prejudgment interest shall be in accordance with the aforementioned conclusions”). Where prejudgment interest is awarded as a matter of right, I further concluded that the Plaintiffs’ breach of contract damages were liquidated. Id. at 685 n. 29. B. Post-Trial Rulings On All Substantive Issues Pertaining to" }, { "docid": "2931354", "title": "", "text": "important interests involved, the court declined to follow the stated rationale of several other federal courts of appeals which applied ordinary contract principles in deciding whether an ADEA waiver is enforceable. See e.g., Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539 (8th Cir.1987), cert. denied, — U.S. -, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987); Runyan v. National Cash Register Corp., 787 F.2d 1039 (6th Cir.1986) (en banc), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986). Rather, the court specifically adopted a “totality of the circumstances” approach, necessitating careful evaluation of the release form itself as well as the complete circumstances in which it was executed. As discussed in Coventry as well as in other cases addressing the issue, relevant factors in reviewing the totality of circumstances include, but are not limited to, the following considerations: (1) the clarity and specificity of the release language; (2) the plaintiff’s education and business experience; (3) the amount of time plaintiff had for deliberation about the release before signing it; (4) whether Plaintiff knew or should have known his rights upon execution of the release; (5) whether plaintiff was encouraged to seek, or in fact received benefit of counsel; (6) whether there was. an opportunity for negotiation of the terms of the Agreement; and (7) whether the consideration given in exchange for the waiver and accepted by the employee exceeds the benefits to which the employee was already entitled by contract or law. 856 F.2d at 523; see also e.g., Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539 (8th Cir.1987), cert. denied, — U.S. -, 107 S.Ct. 3212 (1987); Pilon v. University of Minnesota, 710 F.2d 466 (8th Cir.1983) (Title VII waivers). Our analysis of these factors in the circumstances surrounding Cirillo’s Release leads us to agree with the judgment of the district court that Cirillo knowingly and voluntarily waived his ADEA rights by signing the Release contained in the Termination Agreement. Cirillo claims that the Release was understood by him to pertain only to claims based on the payment methods offered by Arco {i.e., claims arising" }, { "docid": "141426", "title": "", "text": "PHRA. He also alleged that Sears violated Section 510 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140, by terminating his employment to avoid further accrual and payment of pension benefits, and asserted state common law claims. In response to Long’s complaint, Sears filed an answer raising, among others, the following affirmative defense: “Plaintiff has waived and released all claims against [Sears]” and “Plaintiff ratified his waiver and released all claims against [Sears] by his acceptance of and failure to return Ms severance payment.” Thereafter, Sears filed a motion for summary judgment, alleging that Long’s claims were barred by the release. Specifically, Sears argued that the release satisfied the requirements of the OWBPA and that, in any event, Long had ratified the release, making it enforceable despite any statutory deficiencies. Long opposed this motion with facts alleged to demonstrate discrimination and filed a crossmiotion for summary judgment contending that the release was invalid for failure to comply with the requirements of the OWBPA and was void and unenforceable because it had been obtained by fraud. Long agreed to credit severance pay received against any damages awarded. On March 1, 1996, the district court granted summary judgment in favor of Sears on all claims without addressing Sears’ compliance with the OWBPA. While the court recognized that “[wjhether the Sears release meets the facial requirements of the OWBPA is a question of fact not resolvable here by summary judgment,” it concluded that summary judgment was, nonetheless, appropriate. In reaching tMs conclusion the district court relied on authority holding that releases wMch fail to conform to the OWBPA are merely voidable and, under traditional principles of contract law, may be ratified by retention of benefits received. Citing the decision in Wamsley v. Champlin Refining and Chemicals, Inc., 11 F.3d 534 (5th Cir.1993), the district court concluded that the ratification doctrine had survived the enactment of the OWBPA and operated to bar Long’s claims: Beeause Long retained, and did not offer to return more than $39,000 paid in consideration of a Release that he suspected was defective, we hold" } ]

[ { "docid": "4054565", "title": "", "text": "a change in state law has opened a procedural avenue not previously available, Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900), or where there has been a change in federal substantive law, Blair v. California, 340 F.2d 741 (C.A.9, 1965), prior to petitioner’s application for federal review. Neither principles of comity nor an interest in a creative federal-state judicial partnership warrant further delay in disposition of appellant’s claim for relief. The record shows that appellant’s claim of uneonsti-tutionality was raised and in issue before the Appellate Division which affirmed his conviction without opinion and without dissent. We take it that this disposition rejected both his state and federal constitutional claims. Appellant has apparently already spent six years in confinement, and we see no compelling justification for the District Court’s holding that he must give the New York courts another opportunity to consider his constitutional challenge to the validity of the abortion-manslaughter statute. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971); Samu-els v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), and Perez v. Le-desma, 401 U.S. 82, 91 S.Ct. 674, 27 L. Ed.2d 701 (1971), are not apposite. The relief sought there was against criminal prosecutions then in progress. Appellant’s case is a habeas corpus action attacking his final and previous conviction and present incarceration in the state’s prison. Further, the state statute which appellant attacks has been repealed and hence the decision here could have little impact other than upon appellant’s previous conviction. We agree with the District Court that appellant had standing to raise the constitutional issues. Certainly Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), stands for the proposition that a physician has standing to assert the rights of his patients when the offense he is charged with committing has an alleged unconstitutional impact on them. The State’s argument, that appellant would not be entitled to the benefit of a ruling that § 1050 is unconstitutional since the statute was valid at the time of his cosviction, is" } ]

[ { "docid": "14621609", "title": "", "text": "declined to determine whether or not certain peripheral pláintiffs had standing when other plaintiffs remained to force the issues in the Bolton lawsuit. This result is far from a mandate to lower courts to refuse resolution of standing questions merely because at least one of the other plaintiffs, in a group of plaintiffs, appears to have the requisite degree of standing. United States v. Richardson, -U.S. -, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), and Schlesinger v. Reservists Committee to Stop the War et al., - .U.S. -, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), both reinforce the Supreme Court’s insistence that litigation be carried on only by those who have standing. ) The defendants concede Mr. Mercer has standing to raise the substantive issues. The defendants do not concede Mr. Mercer has standing to raise the rights of students or their parents. The defendants’ objections are well taken. The plaintiffs place primary reliance on Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1971). This reliance is misplaced in that in Eisenstadt the persons whose rights were being asserted had no way in which to raise their rights, Eisenstadt, p. 446, 92 S.Ct. 1029. Similarly distinguishable is Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) wherein the court relied, at least in great part, on the confidential relationship between doctor and patient. It has long been the rule that federal courts will find no standing when persons seek to assert the rights of third persons not before the court. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1942). There are no doubt exceptions to the general rule, Eisenstadt and Griswold, supra, but the plaintiff has not placed himself within any of those exceptions. Indeed, permitting Mr. Mercer to press the rights of students and teachers presents some rather peculiar problems not the least of which is how does the court determine whether or not any parents or students desire these laws to be changed. No student and no parent has come forth in this proceeding, or, to" }, { "docid": "5075596", "title": "", "text": "homosexual conduct); Lovisi, 363 F.Supp. at 624-26 (extent of the constitutional right of privacy between married persons where third person is present and the activity is photographed). The Court must now decide whether its analysis of the constitutional right of privacy changes in light of subsequent decisions. Since its seminal decision of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Supreme Court has clarified the nature of the right of privacy as related to decisions of whether to bear or beget a child. The right of privacy expressed in Griswold was argued by some to extend only to marital privacy. See, e.g., Doe, 403 F.Supp. at 1201. The case of Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), held that there was no rational, articulated reason for limiting the access to contraceptives of single adults when married adults are afforded a right to contraceptives. “[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.” Id. at 453, 92 S.Ct. at 1038. The case of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), decided one year later, extended the right of privacy to first trimester abortions. Although the full extent of the right of privacy has not been determined, it is clear that the “decision whether or not to beget or bear a child is at the very heart of [the] cluster of constitutionally protected choices.” Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). The Carey case, decided over a year after the Court of Appeals decision in Lovisi, supra, and the Supreme Court’s summary affirmance of Doe, supra, make it clear that individual autonomy in matters of childbearing extend to married and single people alike. Griswold may no longer be read as holding only that a state may not prohibit a married couple’s use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution" }, { "docid": "5075595", "title": "", "text": "Court’s instant task would be greatly lightened if it were so, Lovisi simply is not dispositive of this issue. IV. Plaintiffs’ Constitutional Right of Privacy. The fundamental substantive issue before the Court is whether the State, consistent with the Constitution, may restrict the non-prostitutional, heterosexual activities of two unmarried, consenting adults when such activities occur in the privacy of one’s home. Plaintiffs contend such intimate, sexual activity is protected by the constitutional right of privacy; any attempts by the state to regulate this activity is unconstitutional. Defendants contend the right of privacy only extends to sexual conduct between two people who are married to each other; heterosexual conduct between unmarried adults does not fall within the scope of the right of privacy. The Court has had occasion in previous opinions to outline the nature and extent of the constitutional right of privacy as it relates to intimate sexual relations between consenting adults in private. See, e.g., Doe v. Commonwealth’s Attorney, 403 F.Supp. at 1203-04 (Merhige, J., dissenting) (constitutional rights of privacy as it relates to homosexual conduct); Lovisi, 363 F.Supp. at 624-26 (extent of the constitutional right of privacy between married persons where third person is present and the activity is photographed). The Court must now decide whether its analysis of the constitutional right of privacy changes in light of subsequent decisions. Since its seminal decision of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Supreme Court has clarified the nature of the right of privacy as related to decisions of whether to bear or beget a child. The right of privacy expressed in Griswold was argued by some to extend only to marital privacy. See, e.g., Doe, 403 F.Supp. at 1201. The case of Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), held that there was no rational, articulated reason for limiting the access to contraceptives of single adults when married adults are afforded a right to contraceptives. “[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the" }, { "docid": "8958805", "title": "", "text": "Constitution, with its requirement of a personal stake in the outcome of an actual case or controversy where the plaintiff has suffered some actual or threatened injury, and from prudential or policy concerns. Prudential or policy considerations may, but do not have to be considered, in a court’s evaluation of standing. Examples of prudential limits on federal court jurisdiction are the third-party standing rule, which normally bars litigants from asserting the rights or legal interests of others not before the court in order to obtain relief from injury to themselves, and the \"zone-of-interest” test. Under the zone-of-interest test, the plaintiff must demonstrate that the interest he is asserting is the kind of interest that arguably is within the zone of interests that the legislature sought to protect or regulate when it passed the statute or created the constitutional provision at issue. Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The zone-of-interest test \"denies a right of review if the plaintiff’s interests are ... marginally related to or inconsistent with the purposes implicit in the [relevant constitutional provision].” 'Wyoming v. Oklahoma, 502 U.S. 437, 469, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992). The zone-of-interest test is applied to claims under the dormant commerce clause. Id. The purpose of the commerce clause is to prevent economic protectionism and retaliation between states and to allow markets to flourish across state borders, and thus to prohibit \"laws that would excite ... jealousies and retaliatory measures” between states. Carbone, 511 U.S. at 390, 114 S.Ct. 1677. . In such cases, plaintiffs have uniformly been allowed to assert the rights of the affected third parties. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)(a doctor and the executive director of Planned Parenthood allowed to assert constitutional rights of married people with whom Planned Parenthood had a professional relationship because those rights would likely be diluted or adversely affected if the challenge failed); Eisenstadt v. Baird, 405 U.S. 438, 446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)(allowing a distributor of contraceptives" }, { "docid": "10717547", "title": "", "text": "justify the difference in treatment between minors and adults contained in C. R.S. § 18-6-101(1) (1973)? Other issues involve the question of plaintiff’s standing to sue, the necessity of appointment of a guardian ad litem, and certification of questions to the Colorado Supreme Court. II After careful consideration of the issues involved, we find that C.R.S. § 18-6-101(1) (1973) as it relates to the necessity of parental or guardian consent in order for minors to obtain legal abortions is unconstitutional. The statute is overbroad in its reach and is violative of the fundamental right to privacy. Our analysis of the legal issues involved follows. DOES THE RIGHT TO PRIVACY EXTEND TO MINORS? I A fundamental right to privacy for individuals is not specifically provided for in the United States Constitution; however, the Supreme Court has recognized that such a right is implicit within various amendments to the Constitution: i. e., the First Amendment, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967); the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J. concurring); the penumbra of the Bill of Rights, Griswold, supra; or in the concept of personal liberty guaranteed by the Fourteenth Amendment, e. g., Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The Court has been particularly sensitive to the right to privacy in areas relating to marriage, procreation, and family life. See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold, supra; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L. Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer, supra. The right to privacy guarantees that in certain personal matters, individuals may conduct their affairs" }, { "docid": "13122102", "title": "", "text": "the intervenors have a direct threat of personal detriment sufficient to demonstrate standing. Doe v. Bolton, supra, 410 U.S. at 179, 93 S.Ct. 739; Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947. It is their interests that are presently at stake and not merely those of the general public. Moreover the dispute between the parties before us is presented in an adversary context and in a form historically viewed as capable of judicial resolution. Flast v. Cohen, supra at 101, 88 S.Ct. 1942. Therefore we are satisfied that these intervenors have presented the court with an actual case or controversy under Article III of the federal constitution as to §§ 714, 861 and 862. Doe v. Bolton, supra, 410 U.S. at 179, 93 S.Ct. 739; cf. Eisenstadt v. Baird, 405 U.S. 438, 443, 92 S.Ct. 1029, 31 L.Ed.2d 349. We also believe these plaintiffs have demonstrated the proper standing to assert the rights of the pregnant women they wish to advise. The appropriate nexus is shown by the confidential relationship these intervenors share with the women they wish to counsel. Unless the intervenors may assert such rights, the rights of all concerned may be diluted or adversely affected. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510; see also Eisenstadt v. Baird, supra, 405 U.S. at 444-446, 92 S.Ct. 1029; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131. We turn to the justiciability of the challenges to 59 O.S.1971 §§ 503 and 509 regulating professional conduct. § 509 defines unprofessional conduct to include “procuring, aiding or abetting a criminal operation or abortion.” Coupled with § 503, this statute would permit the Oklahoma Board of Medical Examiners to revoke or suspend the license or certificate to practice of any physician or surgeon engaging in such conduct. However, the responsibility of enforcement of the statutes is given to the Board of Examiners. Since the Board and its members who enforce these statutes are not joined as parties," }, { "docid": "4918590", "title": "", "text": "Ct. 2925, 2935, 41 L.Ed.2d 706 (1974) (citations omitted). In any event, plaintiffs have given no cogent reason why prospective residents cannot, logistically, bring right to travel claims themselves, as in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L. Ed.2d 349 (1972). No infringement of valuable rights would occur through the mere self-identification inherent in filing a lawsuit. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Even if this hurdle is crossed, cases conferring standing on this basis have typically required some relationship between the party raising the constitutional right and the party to whom the right directly flows. E. g., Barrows v. Jackson, supra, (sale of a specific parcel of land by plaintiff to particular non-caucasian persons); Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) (lessor and lessee of specific parcel of land). In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), a parochial and a military school, each of which had served an Oregon community for a number of years, were given standing to assert the rights of the children of parents in that community to attend the schools, notwithstanding a municipal ordinance. No comparable relationship exists between plaintiffs and prospective residents. Neither is there the intertwining of rights that has on occasion persuaded the Supreme Court to allow standing, as in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (doctor prescribing contraceptives for patient), and Eisenstadt v. Baird, supra (advocate of right to obtain contraceptives could assert the right of persons to do so), to assert the rights of others. For the foregoing reasons, the court finds this case does not fall into any exceptions to the general rule denying vicarious standing. Moreover, the nature of the issues presented and the possibility that a prospective resident could have been joined as a plaintiff make extension of these exceptions imprudent. Consequently, plaintiffs do not have standing to raise the right to travel of persons who might move into their real .estate" }, { "docid": "3149864", "title": "", "text": "own behalf. 318 U.S. at 46, 63 S.Ct. at 494. The Supreme Court has on a number of occasions distinguished its Tileston holding. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), a physician was found to have standing to assert the constitutional rights of married individuals with respect to the state statute forbidding the use of contraceptives. Similarly, in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the Court found that a physician had the requisite standing to assert the rights of unmarried persons denied access to contraceptives. Admittedly, both Griswold and Eisenstadt rely in part on the fact that actual criminal convictions were involved. This fact, however, does not remove the present case from their mold. Although this case does not involve a present criminal prosecution, in our view the fact that the challenged regulations are aimed and operate directly on the plaintiffs, and are of a continuing nature, with potentially very real criminal consequences is sufficient to allow plaintiffs to assert the rights of their patients. Doe v. Scott, 321 F.Supp. 1385, 1387-1388 (N.D.Ill.1971) (three-judge court) vacated on other grounds, 410 U.S. 950, 93 S.Ct. 1423, 35 L.Ed.2d 683 (1973); Crossen v. Breckenridge, 446 F.2d 833, 839-840 (6th Cir. 1971). Griswold and Eisenstadt are based in part on the type of relationship that existed between the plaintiff and the individual whose rights he is seeking to assert. In the abortion context the Supreme Court has recognized the need for patients to consult with their attending physician. Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 733, 35 L.Ed.2d 147. As such, the attending physician is integrally involved in the abortion decision itself. This is not, therefore, a case where one party seeks to raise the rights of another with whom he has only marginal involvement. Rather as the Court recognized in Griswold the rights being asserted were “likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to [the one whose rights" }, { "docid": "10671540", "title": "", "text": "Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), the United States Supreme Court restated the principle of constitutional adjudication concerning the latter sort of standing: One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional- Id. at 21, 80 S.Ct. at 522. The Court noted, however, that there are certain exceptions to this general rule. In the area of first amendment freedoms, for example, parties whose conduct is not constitutionally protected may be able to attack a statute upon which they are charged or convicted because of the chilling effect which that law may have upon others whose acts are protected. E. g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). In areas other than freedom of expression, a litigant may base his claim upon the rights of-others when those rights will necessarily be affected by the outcome of the litigant’s suit. E. g., Eisenstadt v. Baird, 405 U. 5. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed. 510 (1965); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). The Court in Raines also recognized that a defendant in a criminal action might have standing to raise the rights of those who could not constitutionally be prosecuted under the statute where the vast majority of the intended applications of the statute are unconstitutional and when it could be fairly said that the statute was not intended to stand as valid in those few cases where it could be applied lawfully. E. g., Butts v. Merchants & Miners Transportation Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422 (1913). Similarly, a litigant may raise third party rights where an attempt to sever the constitutional applications of a statute from its unconstitutional ones" }, { "docid": "4232248", "title": "", "text": "(1953). The Supreme Court has found this doctrine applicable in several cases involving the right of privacy. See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Eisenstadt decision is particularly instructive with respect to the present action. In Eisenstadt, the plaintiff Baird, an advocate of the use of contraceptives who had been convicted for illegally distributing a non-prescription contraceptive product, sought to challenge his conviction on the ground that the State statute under which he was convicted violated the right of single persons to obtain contraceptives. The defendants in that case challenged his standing because he was not a single person unable to obtain contraceptives. See Eisenstadt v. Baird, supra, 405 U.S. at 443, 92 S.Ct. 1029. The Court found the case an appropriate one for relaxing the usual rule against third-party standing. It allowed Baird to represent the rights of unmarried persons denied access to contraceptives, even though he was not such a person himself and had no professional relationship with such persons. In upholding Baird’s standing, the Court stated that: “[T]he relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.” Id. 405 U.S. at 445, 92 S.Ct. at 1034. (emphasis added). The Court went on: “[Mjore important than the nature of the relationship between the litigant and those whose rights he seeks to assert is the impact of the litigation on third-party interests. * * * Enforcement of the [challenged] statute will materially impair the ability of single persons to obtain contracep tives.” Id. 405 U.S. at 445-46, 92 S. Ct. at 1035. Like Baird, plaintiffs PPA and Hagen are advocates of the privacy rights of those they seek to represent. They advocate the increased availability of nonprescription contraceptives to those whose ability to obtain" }, { "docid": "10671543", "title": "", "text": "doctor in Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, or even the advocate of contraceptives in Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, the Lovisis’ acts did not have the purpose or effect of protecting the rights of third persons. More importantly, the Court sees no obstacle -to prevent those who have preserved the privacy surrounding their acts from asserting those rights to attack Va.Code Ann. § 18.1-212. The Court further concludes that the Lovisis have not established that the Virginia sodomy law is unconstitutional in so many of its applications that it could not have been intended by the Virginia legislature to be left standing to cover persons, such as the Lovisis, who have not preserved their privacy. Although the statute was clearly designed to cover all acts of sodomy, public and private, the Court cannot say that a prohibition against the application of the statute to private acts prevents it from applying in the “vast majority of its intended applications.” United States v. Raines, supra, 362 U.S. at 23, 80 S.Ct. at 523. Furthermore, the statute continues to give adequate notice of its prohibitions after its unconstitutional applications are severed from it. It does not become so vague or ambiguous as to be violative of the due process clause of the fourteenth amendment. See Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). The Court must conclude, therefore, that this is a case falling within the usual rule that a party attacking a statute must demonstrate that his own, rather than another’s rights are adversely affected by the statute. Accordingly, the Lovisis do not have standing to attack the constitutionality of the statute under which they were convicted. An order in accordance with this memorandum will issue. . Carolyn Aeree was aged 11 at the time of the sexual acts in question, and Eugenia was aged 13. . “Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home." }, { "docid": "12543588", "title": "", "text": "anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years. . Dunn testified for the prosecution. His participation in the incident, however, resulted in his deportation to his native Jamaica. . Cf. Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); id., at 460, 463-465, 92 S.Ct. 1029 (White, J. concurring); Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Loving v. Virginia, 388 U.S. 112, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). . Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 & n. 15, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Roe v. Wade, 410 U.S. 113, 154-155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Parker, 33 Cal.App.3d 842, 109 Cal.Rptr. 354, 358 (1973); Chesebrough v. State, 255 So.2d 675, 679 (Fla. 1971). WINTER, Circuit Judge, with whom CRAVEN and BUTZNER, Circuit Judges, concur (dissenting): We accept as settled law the majority’s assumption that marital intimacies shared by the Lovisis when alone and in their own bedroom are within their protected right of privacy. We reject, however, the majority’s implied premise that this marital right of privacy is restricted to those situations in which it is enjoyed in secret. In this regard, the majority’s opinion is unsupported either by reason or by authority. We would hold that vis-a-vis one another, Aldo and Margaret Lovisi, as husband and wife," }, { "docid": "12543587", "title": "", "text": "we affirm the district court’s refusal to issue the writ. AFFIRMED. ADDENDUM After this opinion was prepared and circulated, but before it was filed, the Supreme Court summarily affirmed a decision of a statutory three-judge court dealing with this same statute as applied to adult homosexuals alleging that they were engaged in homosexual activity in private. Doe v. Commonwealth’s Attorney for City of Richmond, E.D.Va., 403 F.Supp. 1199, affirmed,-U.S. -, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). In upholding the statute as applied to homosexual acts between two consenting adults in private places, the Supreme Court necessarily confined the constitutionally protected right of privacy to heterosexual conduct, probably even that only within the marital relationship. At least it reinforces our conclusion that the oral sexual activity of the Lovisis in the presence of Dunn and a camera was not within the area of the constitution’s protection. . Section 18.1-212. Crimes against nature. — If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years. . Dunn testified for the prosecution. His participation in the incident, however, resulted in his deportation to his native Jamaica. . Cf. Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); id., at 460, 463-465, 92 S.Ct. 1029 (White, J. concurring); Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Loving v. Virginia, 388 U.S. 112, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262" }, { "docid": "4232247", "title": "", "text": "first instance insofar as they relate to plaintiffs, PPA and Hagen. The initial question to be decided is whether plaintiffs PPA and Hagen have such a “personal stake in the outcome of the controversy” that there exists the “concrete adverseness” which courts require in considering issues presented for decision. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There can be no question that the statute at issue interferes with New York State residents’ access to non-prescription contraceptives and that it prohibits certain dissemination of information about them. There is equally no question that whatever constitutional privacy right there may be to have access to such contraceptives, it is not a right that these two plaintiffs are asserting on their own behalf. Under certain circumstances, however, it is well established that plaintiffs may represent the constitutional rights of persons not before the court. See N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). The Supreme Court has found this doctrine applicable in several cases involving the right of privacy. See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Eisenstadt decision is particularly instructive with respect to the present action. In Eisenstadt, the plaintiff Baird, an advocate of the use of contraceptives who had been convicted for illegally distributing a non-prescription contraceptive product, sought to challenge his conviction on the ground that the State statute under which he was convicted violated the right of single persons to obtain contraceptives. The defendants in that case challenged his standing because he was not a single person unable to obtain contraceptives. See Eisenstadt v. Baird, supra, 405 U.S. at 443, 92 S.Ct. 1029. The Court found the case an appropriate one for relaxing the usual rule against third-party standing. It allowed Baird to represent the rights of unmarried persons" }, { "docid": "10671533", "title": "", "text": "something intensely private to the individual that calls forth constitutional protection. While the condition of marriage would doubtless make more difficult an attempt by government to justify an intrusion upon sexual behavior, this condition is not a prerequisite to the operation of the right of privacy. Accordingly, the statute also poses a threat to the right of privacy possessed by consenting adults. On the facts of this case, however, the Court is not compelled to make the difficult determination of whether a compelling state interest underlies and justifies Va.Code Ann. § 18.1-212. Even if the statute could not constitutionally be applied to private sexual relations between consenting adults, the Court finds that the relations in this case were not private and concludes that the Lovisis have no right which they can assert. Their conduct was not constitutionally protected. The phrase “right to privacy” may, unless carefully defined, be misconstrued. This is because privacy can refer either to seclusion or to that which is personal. To describe an act as private may mean that it is performed behind closed doors. It may also mean that the doing of that act is a decision personal to the one performing it and having no effect on others. In the constitutional context, the meaning of privacy is doubtless closer to the latter than the former definition. This does not mean, however, that the United States Constitution guarantees to an individual the right to perform any act which he may choose to do so long as the performance of that act has no meaningful effect on others. Rather, the right to privacy extends to the performance of personal acts or decisions only within certain contexts. Among these protected areas are acts and decisions relating to child bearing, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), child rearing; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), marriage; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1243, 22 L.Ed.2d 1010 (1967); and" }, { "docid": "10671530", "title": "", "text": "act as a superlegislature. The right to privacy extends to sexual relations between husband and wife. Despite the philosophical differences of the majority in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), as to which constitutional provision encompasses the right to privacy, their agreement was complete as to the sanctity of the marital relationship. As stated by Mr. Justice Harlan, dissenting from a procedural dismissal in Poe v. Ullman, 367 U.S. 497, 552, 553, 81 S.Ct. 1752, 1782, 6 L.Ed.2d 989 (1961), Of this whole “private realm of family life” it is difficult to imagine what is more private or intimate than a husband and wife’s marital relations . the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. Va.Code Ann., § 18.1-212 regulates no less than the actual form of sexual expression between' husband and wife. It invades the marital bed, informing the couple of the conduct in which they may or may not engage. As it applies to a married couple, this law doubtless threatens an invasion of the right of privacy. Similarly, this Court has some doubt as to whether § 18.1-212 could constitutionally be applied to private sodomous acts between heterosexual consenting adults. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), in particular, casts doubt upon the legal viability of the marital-non-marital distinction. In extending the rationale of Griswold to strike down a Massachusetts statute which prohibited the dissemination of contraceptive devices to unmarried persons, the Court declined to restrict the right of privacy in sexual matters to married couples: Yet the marital couple" }, { "docid": "21693643", "title": "", "text": "Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Hardwick desires to engage privately in sexual activity with another consenting adult. Although this behavior is not procreative, it does involve important assoeiational interests. The Supreme Court has indicated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), that the intimate associations protected by the Constitution are not limited to those with a procreative purpose. The Court in Griswold struck down a state law prohibiting the use of contraceptives because it unduly interfered with the sanctity of the marriage relationship. One component of that relationship is the decision whether to beget and bear children. Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). But the marital relationship is also significant because of the unsurpassed opportunity for mutual support and self-ex pression that it provides. As the Griswold Court stated, “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes____” 381 U.S. at 486, 85 S.Ct. at 1682. See also Zablocki v. Redhail, 434 U.S. 374, 385-86, 98 S.Ct. 673, 680-81, 54 L.Ed.2d 618 (1978) (listing “associational interests” and procreation as separate interests protected by right to marry). The intimate association protected against state interference does not exist in the marriage relationship alone. In Eisenstadt v. Baird, supra, the Supreme Court held that prohibiting the distribution of contraceptives to unmarried persons was unconstitutional because it treated married and unmarried individuals differently. The benefits of marriage can inure to individuals outside the traditional marital relationship. For some, the sexual activity in question here serves the same purpose as the intimacy of marriage. In addition to the resemblance between Hardwick’s conduct and the intimate association of marriage, we pay heed to the fact that he plans to" }, { "docid": "3149863", "title": "", "text": "S.Ct. at 745 (emphasis added). Defendants contend, however, that despite the plaintiffs’ interest in challenging the regulation, they cannot assert as one of the grounds of invalidity that the regulations violate a woman’s right of privacy in deciding whether to abort a pregnancy. The district court relying on Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) agreed with this contention. In Tileston the Supreme Court held that a physician was without standing to assert the rights of his patients in an action to declare a state anti-birth control statute unconstitutional. The Court said: The sole constitutional attack upon the statutes under the Fourteenth Amendment is confined to their deprivation of life — obviously not appellant’s but his patients’. There is no allegation or proof that appellant’s life is in danger. His patients are not parties to this proceeding and there is no basis on which we can say that he has standing to secure an adjudication of his patients’ constitutional right to life, which they do not assert in their own behalf. 318 U.S. at 46, 63 S.Ct. at 494. The Supreme Court has on a number of occasions distinguished its Tileston holding. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), a physician was found to have standing to assert the constitutional rights of married individuals with respect to the state statute forbidding the use of contraceptives. Similarly, in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the Court found that a physician had the requisite standing to assert the rights of unmarried persons denied access to contraceptives. Admittedly, both Griswold and Eisenstadt rely in part on the fact that actual criminal convictions were involved. This fact, however, does not remove the present case from their mold. Although this case does not involve a present criminal prosecution, in our view the fact that the challenged regulations are aimed and operate directly on the plaintiffs, and are of a continuing nature, with potentially very real criminal consequences is sufficient to allow plaintiffs to assert the" }, { "docid": "10671542", "title": "", "text": "would require such a revision of its text that the statute no longer gives an intelligible warning of the conduct it prohibited. E. g., United States v. Reeves, 92 U.S. 214, 23 L.Ed. 563 (1875). The fact that the litigant seeking standing on the basis of another’s rights is doing so in a petition for a writ of habeas corpus, as opposed to another sort of criminal or civil litigation, makes no difference. See Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; United States ex rel Williams v. Zelker, 445 F.2d 451 (2d Cir. 1971). In order for the Lovisis to have standing to assert the rights of consenting adults acting in private, they must show that their case fits within one of the exceptions noted above. This case clearly does not involve first amendment rights, nor do the Lovisis stand in such a relationship to consenting adults performing sodomitic acts in private that the outcome of their conviction will necessarily affect the rights of those third persons. Unlike the doctor in Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, or even the advocate of contraceptives in Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, the Lovisis’ acts did not have the purpose or effect of protecting the rights of third persons. More importantly, the Court sees no obstacle -to prevent those who have preserved the privacy surrounding their acts from asserting those rights to attack Va.Code Ann. § 18.1-212. The Court further concludes that the Lovisis have not established that the Virginia sodomy law is unconstitutional in so many of its applications that it could not have been intended by the Virginia legislature to be left standing to cover persons, such as the Lovisis, who have not preserved their privacy. Although the statute was clearly designed to cover all acts of sodomy, public and private, the Court cannot say that a prohibition against the application of the statute to private acts prevents it from applying in the “vast majority of its intended applications.” United" }, { "docid": "10671541", "title": "", "text": "his claim upon the rights of-others when those rights will necessarily be affected by the outcome of the litigant’s suit. E. g., Eisenstadt v. Baird, 405 U. 5. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed. 510 (1965); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). The Court in Raines also recognized that a defendant in a criminal action might have standing to raise the rights of those who could not constitutionally be prosecuted under the statute where the vast majority of the intended applications of the statute are unconstitutional and when it could be fairly said that the statute was not intended to stand as valid in those few cases where it could be applied lawfully. E. g., Butts v. Merchants & Miners Transportation Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422 (1913). Similarly, a litigant may raise third party rights where an attempt to sever the constitutional applications of a statute from its unconstitutional ones would require such a revision of its text that the statute no longer gives an intelligible warning of the conduct it prohibited. E. g., United States v. Reeves, 92 U.S. 214, 23 L.Ed. 563 (1875). The fact that the litigant seeking standing on the basis of another’s rights is doing so in a petition for a writ of habeas corpus, as opposed to another sort of criminal or civil litigation, makes no difference. See Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; United States ex rel Williams v. Zelker, 445 F.2d 451 (2d Cir. 1971). In order for the Lovisis to have standing to assert the rights of consenting adults acting in private, they must show that their case fits within one of the exceptions noted above. This case clearly does not involve first amendment rights, nor do the Lovisis stand in such a relationship to consenting adults performing sodomitic acts in private that the outcome of their conviction will necessarily affect the rights of those third persons. Unlike the" } ]

[ { "docid": "22812770", "title": "", "text": "a genuine issue of material fact with respect to his negligence claim against Swift. Bou-dreaux’s remaining arguments are without merit. AFFIRMED. . Although our jurisdiction is uncontested, we are duty-bound to examine it sua sponte. See Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir.2004). Here, Bou-dreaux filed his notice of appeal one day before the district court entered a final decision by granting Flying J's motion for summary judgment. This premature notice of appeal would have been sufficient to confer jurisdiction under our circuit’s former \"doctrine of cumulative finality.” See Alcom Elec. Exch., Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir.1984); Jetco Elec. Indus. v. Gardiner, 473 F.2d 1228 (5th Cir.1973). This doctrine has apparently been abrogated by the Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269, 274, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). See United States v. Cooper, 135 F.3d 960, 963 (5th Cir.1998) (holding that FirsTier abrogates the rule announced in the Jetco-Alcom-Alcom line of cases). Cases decided after FirsTier, however, have held that a notice of appeal is proper if taken from an order that \"would have been appealable if immediately followed by the entry of judgment pursuant to Federal Rule of Civil Procedure 54(b).” Barrett v. Atl. Richfield Co., 95 F.3d 375, 379 (5th Cir.1996); see also Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631 (5th Cir.2002). Here, because the district court’s order granting Swift’s motion for summary judgment \"would have been appealable if the district court had certified it pursuant to Rule 54(b), and because the district court did subsequently (and prior to oral argument herein) dispose of all remaining parties and claims,\" we have jurisdiction over this appeal. Young, 294 F.3d at 634 n. 2. . Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir.2004). . Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.2004) (citing Fed.R.Civ.P. 56(c)). . Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003) (citing Anderson" } ]

[ { "docid": "23036134", "title": "", "text": "— the paid administrative leave, heavier workload, etc. — amounted to a materially adverse action. Stewart timely appealed. II. STANDARD OF REVIEW This court reviews de novo a district court’s decision to grant summary judgment when “no issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Deas v. River West, L.P., 152 F.3d 471, 475 (5th Cir.1998). On appeal, “[f]aet questions are viewed in the light most favorable to the nonmovant and questions of law are reviewed de novo.” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir.1995). We will affirm the district court’s decision if we “find that no genuine issue of material fact remained for trial and that judgment was proper as a matter of law.” Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). III. DISCUSSION On appeal, Stewart challenges each of the district court’s dispositive conclusions. A. Jurisdiction First, however, we must address this court’s jurisdiction. Our court is one of limited jurisdiction, which is ordinarily confined to review of final judgments. MTC contends that the district court’s order dismissing it from the litigation was interlocutory, and thus its appeal beyond our jurisdiction, because the case against Loftin remains pending and the court did not certify its decision pursuant to Fed. R.Civ. Proc 54(b) (“when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”). Where an order entering judgment is unclear, the intent of the district court, as reflected in the order and the documents referenced in the order, governs. Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1219-20 (5th Cir.1990). Further, the intent to certify a judgment as final must be unmistakable. Briargrove Shopping Center Joint Venture v. Pilgrim Enterprises, Inc., 170 F.3d 536, 539 (5th Cir.1999). But where there is unmistakable intent, “talismanic words”" }, { "docid": "21804328", "title": "", "text": "to dismiss, and granted in part and denied in part BMS’s motion, dismissing all of the qui tarn claims. As a result, the only claims that survived were the retaliation claims brought against BMS and Edwards’ Arizona-employment claim analogue. The court declined to exercise supplemental jurisdiction over the remaining state law claims. Proceedings continued in the district court on the retaliation claims. However, relators moved to file a third amended complaint under Fed. R. Civ. P. 15(a)(2), and attached the proposed complaint. The district court directed the parties to address changes made in the complaint that it saw as potentially implicating the FCA’s public-disclosure bar. Following responsive filings, the court found the public-disclosure bar precluded many of the amendments and that the amended complaint otherwise failed to plead presentment with adequate particularity to survive a Rule 12(b)(6) motion. Accordingly, the court denied relators’ motion to file a third amended complaint on the basis of futility. The court subsequently granted a Rule 54(b) motion staying litigation on the retaliation claims and granting final judgment certification on both the order resolving the partial motion to dismiss and the order denying the motion to amend. Rela-tors now timely appeal those certified orders. II A. Jurisdiction The district court had jurisdiction over claims arising under the False Claims Act claims pursuant to 28 U.S.C. § 3732(a). The district court certified its order partially granting defendants’ Rule 12(b)(6) motion and its order denying rela-tors’ Rule 15(a)(2) motion under Fed. R. Civ. P. 54(b). “Although Rule 54(b) relaxes the traditional finality requirement for appellate review, it does not tolerate immediate appeal of every action taken by a district court.” Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994). Neither party challenges this court’s jurisdiction to hear the certified orders on appeal. Nonetheless, we must still satisfy ourselves that the certification was proper. Otherwise, appellate jurisdiction is lacking. Lowery v. Fed. Express Corp., 426 F.3d 817, 820 (6th Cir. 2005). The district court’s determination that certification was proper has two components. First, entry of final judgment as to one or more but fewer" }, { "docid": "23036135", "title": "", "text": "this court’s jurisdiction. Our court is one of limited jurisdiction, which is ordinarily confined to review of final judgments. MTC contends that the district court’s order dismissing it from the litigation was interlocutory, and thus its appeal beyond our jurisdiction, because the case against Loftin remains pending and the court did not certify its decision pursuant to Fed. R.Civ. Proc 54(b) (“when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”). Where an order entering judgment is unclear, the intent of the district court, as reflected in the order and the documents referenced in the order, governs. Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1219-20 (5th Cir.1990). Further, the intent to certify a judgment as final must be unmistakable. Briargrove Shopping Center Joint Venture v. Pilgrim Enterprises, Inc., 170 F.3d 536, 539 (5th Cir.1999). But where there is unmistakable intent, “talismanic words” are not required in order to satisfy Rule 54(b). Id.-, Gray ex rel. Rudd v. Beverly Enters. Miss., Inc., 390 F.3d 400, 405 (5th Cir.2004). Here, despite the district court’s failure to cite Rule 54(b), its intention to render a final judgment was plain. The district court’s initial order entered a Rule 58 judgment dismissing both defendants, MTC and Loftin. Later that day, it set aside that judgment as erroneous and entered an amended judgment, dismissing only MTC. Though continuing to cite Rule 58, this second order pointedly makes the two determinations required by Rule 54(b). The judgment dismissing MTC with prejudice is undoubtedly “an ultimate disposition” and so “final” in nature. As to the second, the order roughly tracks the language of Rule 54(b), explicitly “finding no just reason to delay entry of Judgment.” Because these words evince an unmistakable intent to direct entry of a final judgment based on the criteria of Rule 54(b), this court has jurisdiction. B. Continuing Violation Stewart contends that Loftin’s actions beginning in 2003 and ending in 2006" }, { "docid": "8393369", "title": "", "text": "filed by Berckeley and repeated once in its Memorandum of Law, and the similarly summary citation in Colkitt’s Motion for Reconsideration. Given the generality of these references and the paucity of any further discussion of the requirements of Rule 54(b), we are not persuaded that the District Court intended to enter partial final judgment in compliance with the dictates of that Rule. The facts of this case are in stark contrast to those of Kelly and we are unconvinced that the District Court’s “language reflects with unmistakable clarity the district judge’s intent to enter a partial final summary judgment under Rule 54(b).” Kelly, 908 F.2d at 1221. Even the Fifth Circuit has recognized that the absence of an express determination of no just cause for delay cannot be excused where it is unclear whether the district court intended to enter a partial final judgment under Rule 54(b). See Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536 (5th Cir.1999). Discussing its holding in Kelly, the court concluded that, “[t]he intent must be unmistakable; the intent must appear from the order or from documents referenced in the order; we can look nowhere else to find such intent nor can we speculate on the thought process of the district judge.” Id. at 539. Indeed, the facts in Briargrove substantially mirror those presented here. “Unlike the facts in Kelly, the district court nowhere mentions Rule 54(b). And in further contrast with the Kelly facts, neither of the parties in the instant case submitted a motion mentioning Rule 54(b) to the district court.” Id. at 539-40 (citations omitted). While the failure to mention Rule 54(b) will not, by itself, defeat jurisdiction under that section, United States v. Ettrick Wood Prods., Inc., 916 F.2d 1211, 1217 (7th Cir.1990), where there is a concurrent failure to make an express determination of no just cause for delay, we cannot reasonably conclude that the District Court intended to enter a partial final judgment pursuant to that Rule. We are buttressed in this conclusion by the absence of any indication, in a colloquy with counsel or" }, { "docid": "22583223", "title": "", "text": "order as a final judgment. 28 U.S.C. § 1291. The panel questioned whether the judgment qualified as a partial final judgment under Rule 54(b). The panel concluded that “no particular language need be included in the judgment so long as the order reflects an unmistakable intent by the district court to enter an appealable order under Rule 54(b).” 896 F.2d at 924. Finding the necessary indication of intent in the order itself, the panel concluded that a partial final judgment had been entered and therefore that the court had jurisdiction to consider the appeal. II. A. With one exception, our Rule 54(b) cases follow a consistent path. Where neither the order appealed from nor related portions of the record reflect an intent by the district judge to enter a partial final judgment, we refuse to consider the order appealable as a final judgment. See, e.g., Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131 (5th Cir.1985); Thompson v. Betts, 754 F.2d 1243 (5th Cir.1985). Our decision in Thompson v. Betts illustrates this approach. In that case, the plaintiff appealed the dismissal of one defendant although claims were pending against a second defendant. We found “no hint in the record that the district court certified its order as a final judgment under Rule 54(b) or that the parties even sought such a ruling.” Id. at 1245-46. We concluded that the judgment was not final and refused to consider the appeal. Where, on the other hand, language in the order either independently or together with related parts of the record reflects the trial judge’s clear intent to enter a partial final judgment under Rule 54(b), we consider the order appealable. See Crowley Maritime Corp. v. Panama Canal Comm’n, 849 F.2d 951, 953 (5th Cir.1988); EEOC v. Delta Air Lines, Inc., 578 F.2d 115, 116 (5th Cir.1978). In Crowley, the district court dismissed appellant Rolstad’s intervention but did not dispose of other claims against other parties. Rolstad moved the court to amend its order “pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, to include the expression" }, { "docid": "8393368", "title": "", "text": "that it is granting “final judgment” on the claims between Berckeley and Colkitt, while holding the remaining claims by and against Shoreline in abeyance during a one-year stay. In light of the well-known rule that a judgment is not appealable unless it terminates all claims, see, e.g. Carter, 181 F.3d at 343, we do not take the invocation of the words “final judgment” to indicate that the Court intended to grant an appealable partial final judgment under Rule 54(b). The sole reference to the immediate appeal of its entry of summary judgment is the Court’s statement that “we do not prejudge any such motion” by Colkitt for an interlocutory appeal. Not only does this statement disclaim that it is making any ruling at all, but it appears to refer to a hypothetical motion pertaining to the interlocutory appeal provisions of 28 U.S.C. § 1292. The only reference to the application of Rule 54(b) in this case is a lone citation to “Fed.R.Civ.P. 54 and 56” contained in the motion for the entry of final judgment filed by Berckeley and repeated once in its Memorandum of Law, and the similarly summary citation in Colkitt’s Motion for Reconsideration. Given the generality of these references and the paucity of any further discussion of the requirements of Rule 54(b), we are not persuaded that the District Court intended to enter partial final judgment in compliance with the dictates of that Rule. The facts of this case are in stark contrast to those of Kelly and we are unconvinced that the District Court’s “language reflects with unmistakable clarity the district judge’s intent to enter a partial final summary judgment under Rule 54(b).” Kelly, 908 F.2d at 1221. Even the Fifth Circuit has recognized that the absence of an express determination of no just cause for delay cannot be excused where it is unclear whether the district court intended to enter a partial final judgment under Rule 54(b). See Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536 (5th Cir.1999). Discussing its holding in Kelly, the court concluded that, “[t]he intent must be" }, { "docid": "23388145", "title": "", "text": "ORDER AND JUDGMENT HARRIS L. HARTZ, Circuit Judge. On June 15, 2005, Ernie Joe Fields, a state inmate appearing pro se, filed in the United States District Court for the Eastern District of Oklahoma a complaint against the Oklahoma State Penitentiary (OSP) and nine OSP employees. He alleged claims under 42 U.S.C. § 1983 for violations of various constitutional rights, and also appears to have raised other federal-law and state-law claims. The district court dismissed all the federal-law claims for failure to exhaust administrative remedies and then exercised its discretion under 28 U.S.C. § 1367(c)(3) to dismiss the pendent state-law claims. Mr. Fields challenges the grant of summary judgment and the district court’s denial of two motions to amend. We affirm the dismissal of all but one of the federal claims for failure to exhaust and affirm dismissal of the remaining federal claim on other grounds. We also affirm the denial of the motions to amend and the dismissal of the state-law claims. A. Jurisdiction We first must address our jurisdiction to hear this appeal. Mr. Fields filed his notice of appeal after the district court granted judgment to OSP and six individuals who had been served: Warden Mike Mullin, Rocky Bingham, Wayne Brakensiek, Layne Davison, Kameron Harvanek, and Jane Standiford (the Individual Defendants). But the claims against three unserved defendants were still pending, so no final order had been entered. See Fed.R.Civ.P. 54(b); Atiya v. Salt Lake County, 988 F.2d 1013, 1016 (10th Cir.1993) (order is not a final judgment unless it disposes of all claims by all parties or is certified as a final order under Fed.R.Civ.P. 54(b)). In general a party may not appeal until entry of a final order. See 28 U.S.C. § 1291; Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988). The notice of appeal was therefore premature. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 643 (10th Cir.1988). A premature notice of appeal may ripen, however, upon entry of a subsequent final order, see Fed. R.App. P. 4(a)(2); id. at 645-46, so long as the order" }, { "docid": "22747177", "title": "", "text": "to review for reasonableness. Thus, the level of for reasonableness. Thus, the level of articulation required under Mares is satisfied. 402 F.3d at 519. Furthermore, the sentence in this case, at twice the Guideline range, is reasonably supported by the statutory sentencing factors such that we will not disturb the district court’s sentencing decision. Additionally, Smith did not waive any argument based on sentencing disparity. The cases cited by the concurrence in support of waiver are inapposite. See, e.g., Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (holding argument was waived because the petitioners cited only one case, failed “to explain how the cited opinion should apply to the instant case,” and also failed “to mention that the opinion is not even good law”). Here, Smith cites to valid statutory authority and explains how the statute supports his argument. Smith's contention, though ultimately rejected herein, satisfies the requirements of Federal Rule of Appellate Procedure 28(a)(9)(A) and therefore was not waived. EMILIO M. GARZA, Circuit Judge, concurring in part and in the judgment: I agree with the majority’s adoption of the Eighth Circuit’s United States v. Haack, 403 F.3d 997 (8th Cir.2005), standard for reviewing non-Guidelines sentences. I disagree, hovfever, with the majority’s conclusion that the district court adequately considered 18 U.S.C. § 3553(a)(6), “the need to avoid unwarranted sentencing disparity.” The Haack standard requires us to vacate a sentence and remand when the district court did not consider a factor that should have received significant weight. Id. at 1004. I would hold that where the district court imposes a sentence that is more than twice the top of the applicable Guidelines range, sentencing disparity is a factor that should receive significant weight. Although the district court need not, in most cases, explicitly discuss each of the § 3553(a) factors, a sentence so far outside the Guidelines range is not reasonable without consideration of the resulting disparity. I concur in the judgment, however, because Smith has waived any argument based on sentencing disparity by failing to adequately brief it. Fed.R.App.P. 28(a)(9)(A); Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th" }, { "docid": "9869584", "title": "", "text": "jurisdiction sua sponte. S.E.C. v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665 (6th Cir.2001). With certain limited exeep tions not applicable here, we have jurisdiction only over appeals from final decisions of a district court. 28 U.S.C. § 1291. Moreover, “[a]n appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4” of the Federal Rules of Appellate Procedure. Fed. RApp. P. 3(a)(1). A notice of appeal must be filed “within 30 days after the judgment or order appealed from is entered.” Fed. R.App. P. 4(a)(1)(A). A judgment not based on Federal Rules of Civil Procedure 50(b), 52(b), 54, 59, or 60 is not entered until either (1) the judgment “is set out in a separate document” that is entered on the district court docket sheet; or (2) “150 days have run from the entry [of the judgment or order] in the civil docket.” Fed.R.Civ.P. 58(c)(2); see also Fed. R.App. P. 4(a)(7) (defining entry of judgment for Fed. R.App. P. 4(a) purposes). However, “[a] notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.” Fed. R.App. P. 4(a)(2). A grant of partial summary judgment that does not dispose of all parties and all claims is generally not immediately appealable unless the district court issues a Fed.R.Civ.P. 54(b) certificate. See Akers v. Alvey, 338 F.3d 491, 495 (6th Cir.2003) (noting that “a partial grant of summary judgment is not ordinarily appealable” absent Rule 54(b) certification); Levy v. Yenkirir-Majestic Paint Corp., 893 F.2d 1334 (6th Cir.1990) (unpublished order) (“In the absence of certification as a final judgment under Fed.R.Civ.P. 54(b), an order disposing of fewer than all parties or claims in an action is not a final, appealable order.” (citing William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir.1978))); see also EEOC v. Nw." }, { "docid": "23090704", "title": "", "text": "cases) did not authorize compensation for representation in state clemency proceedings. Taylor filed a timely notice of appeal to this Court. This Court ordered the parties to address whether a circuit court has appellate jurisdiction to review the district court’s order denying reimbursement for activities by appointed counsel relating to state clemency matters. The State has informed the Court that it does not have any interest or role in this appeal and therefore does not intend to file a brief. Appellate Jurisdiction This Court must consider, sua sponte if necessary, whether appellate jurisdiction exists. In re Kaiser Aluminum and Chemical Co., 214 F.3d 586, 589 (5th Cir.2000), cert. denied, 532 U.S. 919, 121 S.Ct. 1354, 149 L.Ed.2d 285 (2001). As a court of limited jurisdiction, this Court has authority to hear appeals only from “final decisions” under 28 U.S.C. § 1291, interlocutory decisions under 28 U.S.C. § 1292, non-final judgments certified as final under Federal Rule of Civil Procedure 54(b), or some other non-final order or judgment to which an exception applies. Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enter., Inc., 170 F.3d 536, 538 (5th Cir.1999). In general, a district court’s order is an appealable final decision if it “ends the litigation on' the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). In addition, the jurisprudential exception known as the collateral-order doctrine permits an appeal of a narrow group of interlocutory orders if the district court’s ruling conclusively determines the disputed question, resolves an important issue that is completely separate from the merits, and cannot effectively be reviewed on appeal from a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); United States v. Brown, 218 F.3d 415, 420 (5th Cir.2000), cert. denied, 531 U.S. 1111, 121 S.Ct. 854,148 L.Ed.2d 769 (2001). At issue here is the district court’s ruling that counsel" }, { "docid": "23640947", "title": "", "text": "and had pro-competitive benefits, the trial court dismissed all the Sherman Act causes of action. Further, finding no evidence that Apotex’s purchase of ACIC/Brantford caused economic harm to plaintiffs, it also dismissed the Clayton Act claim. In addition, the district court ruled Apothecon was not engaged in a joint venture with Geneva and therefore lacked standing to sue. From these rulings and the order entered thereon, plaintiffs appeal. Geneva’s state law tort and breach of contract causes of action against the same defendants remain before the district court during the pendency of this appeal. DISCUSSION I Partial Summary Judgment Ordinarily, a district court’s grant of partial summary judgment is not immediately appealable because it is not a final judgment. See 28 U.S.C. § 1291; Coopers & Lybrand v. Livesay, 487 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (federal appellate jurisdiction generally requires a conclusive decision by the district court that ends the litigation on the merits). The district court entered final judgment on October 7, 2002 on the claims it dismissed pursuant to Fed. R.Civ.P. 54(b). Rule 54(b) allows for the entry of a partial final judgment and thereby permits immediate appeal to avoid injustice. Thus, we have appellate jurisdiction. See O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 40-41 (2d Cir.2003). Summary judgment is useful “to isolate and dispose of factually unsupported claims,” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), particularly in antitrust cases. See Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir.1998). This remedy is an essential tool in the area of antitrust law because it helps avoid wasteful and lengthy litigation that may have a chilling effect on pro-competitive market forces. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 593-94, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We review a grant of summary judgment de novo to ensure the district court applied substantive antitrust law correctly. Tops Mkts., 142 F.3d at 95. A grant of such relief is proper if there are no genuine" }, { "docid": "22864949", "title": "", "text": "district attorney, Harry Con-nick, seeking to hold him liable for the alleged failure adequately to train and supervise the prosecutors in his office. Berry, Jordan, and Connick moved to dismiss the claims under Fed.R.Civ.P. 12(b)(6) or for summary judgment. The district court granted the motions, holding that Berry and Jordan were protected by the doctrine of absolute prosecutorial immunity and that Connick was entitled to summary judgment because the claims against him were barred on grounds of qualified immunity. The judgment did not dispose of Cousin’s claims against the police defendants, which have been stayed pending the resolution of this appeal. II. Defendants claim this court lacks jurisdiction over the instant appeal. After the district court granted the motions for dismissal and summary judgment, Cousin filed a notice of appeal. The judgment did not dispose of all defendants, and when Cousin filed his notice, the court had not yet issued an unequivocal certification under Fed.R.Civ.P. 54(b). Cousin requested, and the court issued, a rule 54(b) final judgment nunc pro tunc. Defendants contend that Cousin’s notice of appeal is defective because it was filed before the court entered the rule 54(b) judgment and that, as a result, we lack appellate jurisdiction. We disagree. “A notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.” Fed. R.App. P. 4(a)(2). Under rule 4(a)(2), an appeal from a nonfinal decision may serve as an effective notice of appeal from a subsequently entered final judgment if the nonfinal decision “would be appealable if immediately followed by the entry of judgment.” FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). This court has applied the FirsTier rule in the context of the entry of a rule 54(b) certification after a prematurely filed notice of appeal, precisely the situation presented by this case. Barrett v. Atl. Richfield Co., 95 F.3d 375 (5th Cir.1996). “Because the district court’s order would have been appealable" }, { "docid": "6390682", "title": "", "text": "parties was entered pursuant to Rule 54(b), the judgment is not considered final. See Thompson, 754 F.2d at 1245 (holding that absent a Rule 54(b) certification, a partial disposition of a multi-party action is not a final decision under § 1291); Brookens v. White, 795 F.2d 178, 179 (D.C.Cir.1986) (stating that it is “elementary that a grant of summary judgment as to some parties in multi-party litigation does not constitute a final order unless the requirements of Fed. R.Civ.P. 54(b) are met”). In the instant case, there is no indication in the record that the district court certified its final judgment order pursuant to Rule 54(b) or that any of the parties ever sought such a ruling. See Thompson, 754 F.2d at 1245-46. Accordingly, the district court’s order can not be viewed as a Rule 54(b) judgment. Furthermore, while certain other exceptions to the final judgment rule may allow appellate courts to hear appeals from otherwise interlocutory judgments, none of these exceptions apply to the present ease. The district court has left a substantial part of the action intact and must dispose of Wither-spoon’s claims against Wadley before the court’s order may be deemed final and reviewable. III. Conclusion The district court attempted to enter a final judgment in the present case. However, the court neglected to adjudicate the rights and liabilities of Wadley, a party properly before the court. Because of the district court’s failure to dispose of all parties to the litigation, we find that the “Final Judgment” order lacks finality thus depriving this court of appellate jurisdiction pursuant to 28 U.S.C. § 1291. For this reason, the appeal is DISMISSED. . Witherspoon filed his petition against all of the defendants pursuant to § 1983. However, because some of the defendants alleged to have violated Witherspoon’s Eighth Amendment rights are federal defendants, we construe his complaint against them as an action under 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). See Stephenson v. Reno, 28 F.3d 26, 26 n. 1 (5th Cir.1994). . Jurisdictional defects" }, { "docid": "23255845", "title": "", "text": "a grievance. The district court agreed. Although Dale is the appellant, his first argument is that we lack jurisdiction over this appeal because, he says, the district court never entered a final judgment as to the warden. The district court’s grant of summary judgment applied only to the four defendants who still remained in the case; the warden had been dismissed early in the litigation. Dale, though, seems to believe that the case is still active as to the warden. A final, appealable decision is one that disposes of all claims against all parties, with the exception (not applicable here) where the district court complies with the requirements to enter a partial final judgment. See Fed.R.Civ.P. 54(b). A district court’s decision- is final under 28 U.S.C. § 1291 if the court “has finished with the case,” Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir.2003), and “finished” is the only way to describe this litigation as it currently stands in the district court. Dale sought to reinstate the warden as a defendant, but the district court never granted the motion. Rather, the court took Dale’s request “under advisement” and instructed him to file a supplemental pleading explaining how the warden was personally responsible for his injuries. Dale did not comply, so he effectively abandoned his claim against the warden by never mentioning him again. See, e.g., Heft v. Moore, 351 F.3d 278, 281-82 (7th Cir.2003); Laborers’ Pension Fund v. A & C Envtl., Inc., 301 F.3d 768, 774 n. 4 (7th Cir.2002); Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 667 (7th Cir.1986). The district court’s early dismissal of the warden was never vacated, and the court’s later summary judgment order resolved the case as to the four remaining defendants. When the court entered its judgment dismissing the complaint, all parties and all claims had indeed been disposed of. Thus Dale’s jurisdictional argument fails. On the merits, Dale argues that the district court erred in granting summary judgment for the defendants because his pleadings and affidavits show that he requested the administrative grievance form within the" }, { "docid": "15917393", "title": "", "text": "to en force victim restitution orders in favor of a private party. Phillips filed a timely appeal under 28 U.S.C. § 1292, but in an unpublished decision, we dismissed his appeal for lack of jurisdiction; the district court’s order was non-final and non-appealable because there was a still-pending claim in the Hornsby action and the district court had not certified a partial final judgment under Federal Rule Civil Procedure 54(b). In June 2001, however, the district court granted Phillips’ subsequent Rule 54(b) motion for partial final judgment. JURISDICTION We have jurisdiction over the district court’s Rule 54(b) partial judgment under 28 U.S.C. § 1291 because it disposed of a distinct claim for relief. Under Eldredge v. Martin Marietta Corp., 207 F.3d 737 (5th Cir.2000), we have appellate jurisdiction under § 1291 where the district court entered judgment on a distinct “claim” for relief that meets the finality requirement of § 1291 and there is no just reason for delay. 207 F.3d at 740 & n. 2. The district court’s judgment meets these criteria. The garnishment of the retirement account is a distinct “claim” under Rule 54(b). Although it is not entirely clear what' constitutes a “claim” for relief, the retirement garnishment is, in any case, a totally separate claim from the garnishment of the inheritance; the Government could have pursued the retirement garnishment without violating the rule against splitting claims. Id. In addition, while the inheritance claim is still pending in district court, the garnishment of the retirement funds is complete; the garnishment order directs immediate payment of the retirement funds. Thus, there is nothing left to resolve, the judgment is final, there is no just reason for delay and jurisdiction is proper under Rule 54(b) and § 1291. STANDARD OF REVIEW We review the district court’s statutory construction de novo. Lara v. Cinemark USA, Inc., 207 F.3d 783, 786 (5th Cir.2000). DISCUSSION Phillips contends that the FDCPA grants the government authority to enforce restitution in favor of the United States, but not to enforce restitution in favor of a private party. He bases this contention on the fact that" }, { "docid": "22583222", "title": "", "text": "PER CURIAM: We took this case en banc to consider the following question: May a district court enter a partial final judgment under Federal Rule of Civil Procedure 54(b), without reciting that “no just reason for delay” exists for its entry. I. The background facts of this case are stated fully in the panel opinion. 896 F.2d 923 (5th Cir.1990). We will state only the facts important to our decision today. Kelly sued several defendants. The district court granted one defendant’s motion for summary judgment and dismissed all of plaintiffs claims against that defendant, but the court did not dispose of the claims against other defendants. By minute entry, the judge directed the dismissed defendant to “prepare and submit 54(b) judgment to the Court.” The order submitted and signed was captioned “F.R.C.P. 54(b) JUDGMENT.” In the order, the trial court directed “that there be final judgment entered pursuant to Federal Rule of Civil Procedure 54(b)....” The order does not provide that “no just reason for delay” exists for entry of the judgment. Kelly appealed the order as a final judgment. 28 U.S.C. § 1291. The panel questioned whether the judgment qualified as a partial final judgment under Rule 54(b). The panel concluded that “no particular language need be included in the judgment so long as the order reflects an unmistakable intent by the district court to enter an appealable order under Rule 54(b).” 896 F.2d at 924. Finding the necessary indication of intent in the order itself, the panel concluded that a partial final judgment had been entered and therefore that the court had jurisdiction to consider the appeal. II. A. With one exception, our Rule 54(b) cases follow a consistent path. Where neither the order appealed from nor related portions of the record reflect an intent by the district judge to enter a partial final judgment, we refuse to consider the order appealable as a final judgment. See, e.g., Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131 (5th Cir.1985); Thompson v. Betts, 754 F.2d 1243 (5th Cir.1985). Our decision in Thompson v. Betts illustrates" }, { "docid": "22925814", "title": "", "text": "any “cleanup” and remediation costs associated with the Briargrove Shopping Center property. This is a Final Judgment. Pilgrim subsequently filed a motion to amend the judgment, requesting that the district court alter its findings of fact and analysis of law; the district court denied the motion. Briargrove then filed a motion requesting the court to aid the enforcement of its judgment by issuing a “turnover order” according to Texas’ practice and procedure. See Fed. R.Civ.P. 69(a). In response, Pilgrim asked the district court to approve a supersedeas bond. The court approved the bond and further ordered that “all execution upon [the court’s] Declaratory Judgment and Final Judgment ... are stayed pending appeal in front of the Fifth Circuit Court of Appeals.” This order did not state whether the court contemplated an immediate appeal or an appeal following the disposition of the various other claims and counterclaims. Ill Our court is one of limited jurisdiction. We have authority to hear appeals only from “final decisions” under 28 U.S.C. § 1291, interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments certified as final under to Fed.R.Civ.P. 54(b), or some other nonfinal order or judgment to which an exception applies (none apply here). We have said that “[a] decision is final when it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Askanase v. Livingwell, Inc., 981 F.2d 807, 810 (5th Cir.1993) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Clearly, the district court in this case has not rendered a “final decision” nor entered a final judgment as that phrase is understood for § 1291 purposes. Therefore, we must consider whether the district court has certified its judgment for appeal under Rule 54(b) so that we have authority to hear an appeal from a decision that “adjudicates fewer than all the claims.” Fed.R.Civ.P. 54(b). Rule 54(b) states, in relevant part, the following: When more than one claim for relief is presented in an action ... the court may direct the entry of a final" }, { "docid": "23388146", "title": "", "text": "Mr. Fields filed his notice of appeal after the district court granted judgment to OSP and six individuals who had been served: Warden Mike Mullin, Rocky Bingham, Wayne Brakensiek, Layne Davison, Kameron Harvanek, and Jane Standiford (the Individual Defendants). But the claims against three unserved defendants were still pending, so no final order had been entered. See Fed.R.Civ.P. 54(b); Atiya v. Salt Lake County, 988 F.2d 1013, 1016 (10th Cir.1993) (order is not a final judgment unless it disposes of all claims by all parties or is certified as a final order under Fed.R.Civ.P. 54(b)). In general a party may not appeal until entry of a final order. See 28 U.S.C. § 1291; Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988). The notice of appeal was therefore premature. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 643 (10th Cir.1988). A premature notice of appeal may ripen, however, upon entry of a subsequent final order, see Fed. R.App. P. 4(a)(2); id. at 645-46, so long as the order leading to the premature notice of appeal has some indicia of finality and is likely to remain unchanged during subsequent court proceedings, see FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 277, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991); Hinton v. City of Elwood, Kan., 997 F.2d 774, 778 (10th Cir.1993); Reed v. McKune, 153 Fed.Appx. 511, 513 (10th Cir.2005) (“Another limitation implicit in the Lewis standard is that the order leading to the premature notice of appeal must have independent indicia of finality.”). Those conditions were satisfied, when the district court completely disposed of the case by dismissing the unserved defendants, so the notice of appeal ripened. Hence, we have jurisdiction to review the court’s orders granting summary judgment. Although Mr. Fields did not designate in his notice of appeal the court’s order denying his motions to amend, a notice of appeal that names the final judgment is sufficient to support jurisdiction over earlier orders that merged in the final judgment. See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383" }, { "docid": "5542051", "title": "", "text": "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 Rule of Civil Procedure 54(b), thereby allowing Complainants the opportunity to appeal the rulings with the United States Fifth Circuit Court of Appeal.” . 123 F.3d 336 (5th Cir.1997). . Id. at 338. . Rule 54(b) requires an \"express determination that there is no just reason for delay.” The Fifth Circuit does not require a mechanical recitation of the rule's requirements, but rather requires that the district court manifest “unmistakable intent” to make its judgment final. See Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 539 (5th Cir.1999). The district court’s order meets this requirement. Cf. id.; see supra note 2. . 135 F.3d 960 (5th Cir.1998). . 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). . Id. at 276, 111 S.Ct. 648. . Id. at 963. . Id. .. Id. . See Woodfield v. Bowman, 193 F.3d 354 (5th Cir.1999); Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir.1999); United States v. Short, 181 F.3d 620 (5th Cir.1999). . See Fed. R. Civ. P. 54(b) advisory" }, { "docid": "5542052", "title": "", "text": "Rule of Civil Procedure 54(b), thereby allowing Complainants the opportunity to appeal the rulings with the United States Fifth Circuit Court of Appeal.” . 123 F.3d 336 (5th Cir.1997). . Id. at 338. . Rule 54(b) requires an \"express determination that there is no just reason for delay.” The Fifth Circuit does not require a mechanical recitation of the rule's requirements, but rather requires that the district court manifest “unmistakable intent” to make its judgment final. See Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 539 (5th Cir.1999). The district court’s order meets this requirement. Cf. id.; see supra note 2. . 135 F.3d 960 (5th Cir.1998). . 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). . Id. at 276, 111 S.Ct. 648. . Id. at 963. . Id. .. Id. . See Woodfield v. Bowman, 193 F.3d 354 (5th Cir.1999); Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir.1999); United States v. Short, 181 F.3d 620 (5th Cir.1999). . See Fed. R. Civ. P. 54(b) advisory committee’s notes. . Id.; see Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585-87 (3d Cir.1999) (criticizing Cooper as reading FirsTier too broadly). . Rule 41(a) contemplates dismissal of an \"action” rather than a \"claim” or \"claims.” At least one court has refused to permit a Rule 41(a) dismissal of a single claim against a defendant where other claims remain against that same defendant. See Exxon Corp. v. Maryland Cas. Co., 599 F.2d 659 (5th Cir.1979); see also Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 n. 2 (5th Cir.1978) (stating in dicta that the proper way to dismiss claims against a remaining defendant is to move for amendment under Federal Rule of Civil Procedure 15). It is unnecessary to decide whether the stipulated motion properly came under Rule 41(a), or whether the dismissal took effect upon filing, or upon the trial court's granting, of the motion. For this reason, we will not consider Henkel's argument that the stipulation lacked effect under Rule 41(a) because it was not signed by all parties. ." } ]

[ { "docid": "2610099", "title": "", "text": "Title VII does not grant relief to individuals who were refused employment “for any reason other than discrimination on account of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-5(g). As we have on numerous occasions held, “the ultimate inquiry in a Title VII disparate treatment claim is whether discriminatory intent was a ‘but for’ cause of the adverse action.” Germane v. Heckler, 804 F.2d 366, 368 (7th Cir.1986); see Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1233 n. 4 (7th Cir.1986); McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924, 928 (7th Cir.1984); Sherkow v. Wisconsin, 630 F.2d 498, 502 (7th Cir.1980). Where the defendant has offered a legitimate, nondiscriminatory reason for rejecting the plaintiff, [t]he order of proof then would impose upon the plaintiff the burden of proving that the reasons advanced were a pretext and that a motivating or substantial factor in the defendant’s decision was discrimination and but for that discrimination the plaintiff would have been appointed. McDonnell-Douglas Corp. v. Green, [411 U.S. 792] at 804-05, 93 S.Ct. [1817] at 1825 [, 36 L.Ed.2d 668 (1973)]. See also Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 [97 S.Ct. 568, 50 L.Ed.2d 471 (1977)].... Sherkow, 630 F.2d at 502; see also U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-716, 103 S.Ct. 1478, 1481-1482, 75 L.Ed.2d 403; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (plaintiff must prove intentional discrimination “by persuading the court that a discriminatory intent more likely [than not] motivated the employer”); Blalock v. Metals Trades, Inc., 775 F.2d 703, 712 (6th Cir.1985) (even where plaintiff demonstrates that discriminatory intent is a motivating factor in employment decision, employer can still avoid liability under Title VII by proving that the same decision would have been made even in the absence of discrimination). Marquette’s position is that sex had nothing to do with its decision not to hire the plaintiff. It maintains that the plaintiff’s credentials were not competitive with those of other applicants, and even if" } ]

[ { "docid": "23240167", "title": "", "text": "his notice of right to sue on December 16, 1970, Guerra filed the instant lawsuit in the United States District Court for the Southern District of Texas on January 6, 1971. Guerra alleged that various policies and practices followed by defendants discriminated against him and other Mexican Nationals on the basis of national origin in violation of rights secured by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and by the Civil Rights Act of 1866, 42 U.S.C. § 1981. He sought declaratory and injunctive relief as well as back pay and attorneys’ fees. By final order entered on November 6, 1972, the district court held that defendants' had engaged in an illegal discriminatory practice. After a March 1973 hearing on damages, the court (1) permanently enjoined all the defendants from giving job preferences based on the citizenship of an employee or the residence of the employee’s family; (2) permanently enjoined defendants Local and International from requiring United States citizenship as a condition of membership in the union; (3) imposed back pay liability on defendants Local and International, jointly and severally; and (4) ordered all de fendants to pay reasonable attorneys’ fees and costs. II. TITLE VII CLAIM In Espinoza v. Farah Manufacturing Co., this Court held that an employer’s refusal to hire an applicant because of her lack of United States citizenship did not fall within the prohibition of Title VII of the Civil Rights Act of 1964 against employment discrimination on the basis of national origin, 42 U.S.C. § 2000e-2(a) (1) (1970). On the authority of Espinoza the court below concluded that plaintiff-appellee-Guerra not entitled to relief under Title VII, reasoning that any discrimination against Guerra turned on his status as an alien and on the foreign residence of his family rather than on his national origin. After the district court’s decision, the Supreme Court affirmed our decision in Espinoza, Espinoza v. Farah Manufacturing Co., 1973, 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287. The Court did note that Title VII protected aliens otherwise within its coverage from discrimination based" }, { "docid": "714304", "title": "", "text": "prevail on a motion for summary judgment, the moving party must demonstrate the absence of genuine disputes of material fact and factual inferences. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Thrasher v. State Farm Fire and Casualty Co., 734 F.2d 637, 638-39 (11th Cir.1984) (per curiam). In ruling on a motion for summary judgment, a court must view the record in the light most favorable to the nonmoving party. Id. Accordingly, summary judgment is appropriate only where undisputed facts entitle a party to judgment as a matter of law. Id. For the reasons stated below, the Court concludes that defendants are entitled to summary judgment with respect to both of plaintiff’s claims. 1) The National Origin Claim In support of his Title VII claim, plaintiff argues that, in reducing their staff, defendants accorded preferential treatment to foreign nationals. Specifically, plaintiff challenges the decision to retain Cormack, who is a foreign national, in the sole remaining OSNA marketing position. Plaintiff asserts that defendants’ bias is evidenced by Derrett’s promise to “take care of the foreign chaps.” Deposition of John Robert McWaters at 17. According to plaintiff, Derrett’s “statement is consistent with the fact that certain of defendants’ non-U.S. employees — including Mr. Cormack — had contractual guarantees of travel reimbursement to their country of origin in the event of termination.” Plaintiff’s Brief in Opposition to Defendants’ Motion for Summary Judgment at 11 n. 9. Plaintiff’s theory is simply not cognizable under Title VII. In Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), the Supreme Court considered whether Title VII’s prohibition against discrimination on account of national origin, 42 U.S.C. § 2000e-2(a)(1), applied to discrimination based on citizenship. Writing for the majority, Justice Marshall reviewed the language of section 2000e-2(a)(l) and the relevant legislative history, and concluded that “nothing in [Title VII] makes it illegal to discriminate on the basis of citizenship or alienage.” 414 U.S. at 95; see also Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir.1980), cert. denied, 449 U.S. 1113," }, { "docid": "22841146", "title": "", "text": "Atkinson’s Title VII retaliation claims were properly dismissed by the District Court because the allegations in her complaint did not fall “fairly within the scope of the ... EEOC complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.1996). The criticisms made by Atkinson pertained only to the treatment of coaches of women’s sports, as opposed to the treatment of coaches who were women. As such, Atkinson’s retaliation claim is more properly characterized as a claim predicated on activities in support of Title IX, rather than a claim predicated on activities protected under Title VII. Accordingly, the District Court committed no error in entering summary judgment for the defendants on Atkinson’s retaliation claim. D. Gender Discrimination Claims. Title VII prohibits employers from engaging in discrimination on the basis of race, color, religion, sex or national origin. See 42 U.S.C. § 2000e-2. To prevail on a claim for sex discrimination under Title VII or its analogous provision in the PHRA, Atkinson must satisfy the three-step burden-shifting inquiry under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, she must establish a prima facie case of sex discrimination. If she succeeds, the burden shifts to Lafayette College to advance a legitimate, non-retaliatory reason for its action. See id. at 802-03, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. If the College advances such a position, the burden shifts back to Atkinson to prove that the nondiscriminatory explanation is merely a pretext for discrimination. Id. at 804, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. This Court will assume, without deciding, that Atkinson established a prima facie case of discrimination. Atkinson does not contest that Lafayette College articulated legitimate, nondiscriminatory reasons for each of the actions alleged to have been discriminatory — her termination, the denial of her claim to have tenure and the denial of her request for a faculty appeal. Thus, the burden shifts back to Atkinson to prove that the reasons articulated by Lafayette College were pretextual. We have recognized two ways in which a" }, { "docid": "21449767", "title": "", "text": "2004 mailing did not meet the standards for EEOC charges articulated in 29 C.F.R. § 1601.12(6). The district court recognized that the evidence “raise[d] questions regarding whether [Salas’] December mailing to the EEOC contained a ‘written statement sufficiently precise to identify the parties, and to describe generally the action or practice [of which plaintiff] complained.’ ” However, the court granted summary judgment in favor of the DOC, stating that Salas bore the burden of proving a timely filing, and he should have produced a copy of the document he mailed to the EEOC in December. We cannot accept the district court’s finding on this issue, however, because it was premised on an error of law. A plaintiffs failure to exhaust administrative remedies is an affirmative defense, which is the defendant’s burden to prove. See Dole v. Chandler, 438 F.Bd 804, 809 (7th Cir.2006); Massey v. Reiman, 196 F.3d 727, 735 (7th Cir.1999). Because we agree with the district court’s assessment that the evidence was inconclusive at best, the tie must go to the plaintiff. Consequently, we conclude that Salas’ EEOC charge was timely. B. Salas’ Title VII Claims Because the timeliness issue is not dis-positive of the Title VII claims, we must determine whether Salas has offered evidence sufficient to establish a prima facie case of either national origin discrimination or retaliation. 1. National Origin Discrimination To make a prima facie case of disparate treatment based on national origin, a plaintiff must prove that 1) he was a member of a protected class, 2) he was meeting his employer’s legitimate business expectations, 3) he suffered an adverse employment action, and 4) his employer treated similarly situated employees outside of the class more favorably. Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.2005). Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for the decision. Id. If the defendant satisfies its burden, then the burden shifts back to the plaintiff to show that the defendant’s explanation was pretextual. Id. Salas claims that he offered evidence" }, { "docid": "6027083", "title": "", "text": "process. Even though Lisa had only been working with Katia for a brief period of time — a matter of months — she told me that she was setting in motion a process to terminate Katia. Lisa even complained to me about how long it would take to terminate Katia. The “green card” statement does not show a specific link between placement on the PAP and Grubbs’s alleged discriminatory animus toward Guimaraes’s national origin. Guimaraes conflates citizenship or immigration status with national origin. Her green card process shows her intent to change her citizenship or immigration status by becoming a lawful permanent resident. True, a reasonable jury could find the “green card” statement evinces an intent to terminate Guimaraes because she is not yet a lawful permanent resident. The Supreme Court has held, however, that while “[a]liens are protected from illegal discrimination” under Title VII, “nothing in [Title VII] makes it illegal to discriminate on the basis of citizenship or alienage.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973); see also Lixin Liu v. BASF Corp., 409 Fed.Appx. 988, 991 (8th Cir.2011) (per curiam) (unpublished) (rejecting Title VII claim where the plaintiff “confiate[d] national origin and alienage. His employment status was terminated because of his immigration status, not his Chinese ancestry.” (citation omitted)). Guimaraes does not present direct evidence of national-origin discrimination in violation of Title VII or the MHRA. Her claim is properly analyzed under McDonnell Douglas. 2. Under the McDonnell Douglas framework, Guimaraes must first establish a prima facie case of discrimination. Torgerson, 643 F.3d at 1046. The burden of production then shifts to SuperValu to “articulate a legitimate, non-discriminatory reason” for its act. Id. “[T]he ultimate burden [then] falls on [Guimaraes] to produce evidence sufficient to create a genuine issue of material fact regarding whether [SuperValu’s] proffered nondiscriminatory justifications are mere pretext for intentional discrimination.” Id., quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir.2005) (first and second alterations in original). Guimaraes’s “burden to show pretext ‘merges with the ultimate burden of persuading the court that" }, { "docid": "7628952", "title": "", "text": "both disparate impact and disparate treatment claims). C As the plaintiffs have established a prima facie case of disparate treatment, under the second step of McDonnell Douglas “[t]he burden then must shift to the employer to articulate some legitimate, nondiscnminatory reason” for the challenged employment practice. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Similarly, under the disparate impact provisions of Title VII, proof of a prima facie case shifts the burden to the employer to demonstrate that the challenged practice is job related and consistent with business necessity. 42 U.S.C. § 2000e-2(k)(l)(A)(i); Griggs, 401 U.S. at 431, 91 S.Ct. 849. The district court, however, pretermit-ted any further analysis under either theory after the prima facie stage. Although it agreed that Title VII protects against discrimination “because of [an] individual’s race ... or national origin,” 977 F.Supp. at 442 (quoting 42 U.S.C. § 2000e-2(a)(l)), the court cut off the analysis of plaintiffs’ disparate treatment claim on the ground that the discrimination here was “ ‘because of citizenship, not because of membership in a Title VII protected class.” Id. Stating that “[t]he Supreme Court held in Espinoza v. Farah, that ... [Title VII] does not offer protection from discrimination on the basis of citizenship,” the district court held that plaintiffs had failed as a matter of law to make out a prima facie case of disparate treatment. Id. at 441 (citation omitted). The district court’s reliance on Espinoza was misplaced for two reasons. First, although the Supreme Court did hold that citizenship is not a facially-unlawful criterion for employment decisions, see 414 U.S. 86, 91, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), it also recognized that “an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination.” Id. at 92, 94 S.Ct. 334. Title VII, the Court said, “prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.” Id. That principle was of no assistance to the Espinoza plaintiffs, who alleged discrimination based on Mexican national origin: notwithstanding the employer’s citizens-only" }, { "docid": "20344160", "title": "", "text": "of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) held that the Eleventh Amendment permits § 1983 suits against municipalities under certain circumstances. The Supreme Court, however, sanctioned suits only against “local government units which are not considered part of the State for Eleventh Amendment purposes.” 436 U.S. at 690, n. 54, 98 S.Ct. at 2035, n. 54. The four named New York State agencies in this case are clearly “part of the State.” Thus, plaintiff’s § 1983 suit against them must be dismissed. 3. Title VII (42 U.S.C. § 2000e-2(a)) Plaintiff alleges that the DOH, OHSM’s refusal to promote him to the position of fiscal analyst was based upon the fact that he is an Egyptian Arab. Section 2000e-2 of Title VII provides in pertinent part: (a) It shall be an unlawful employment practice for an employer— (1) to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... national origin; or (2) to limit ... or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s ... national origin. 42 U.S.C. § 2000e-2(a)(l) & (2). In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court described the burden of proof in a Title VII case as follows: (1) Plaintiff has the initial burden of establishing a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to “articulate some legitimate non-discriminatory reason” for the non-selection of plaintiff; and (3) if the employer does articulate such a reason, the burden shifts back to the plaintiff to prove that the reason given by the employer is not really legitimate and nondiscriminatory but is merely pretextual. Id. at 802-04, 93 S.Ct. at 1824-1825. Here, plaintiff has succeeded in presenting a prima facie case by demonstrating that (1) he is" }, { "docid": "23421174", "title": "", "text": "Union denied his rights under the agreement and acquiesced in his termination; and 4. Hughes failed to pay his retirement benefits. Pejic’s complaint describes incidents of harassment at work. He claims they are evidence of the discriminatory motive which led to his non-promotion and discharge. This claim may be analyzed under the “disparate treatment model,” which applies when “an individual [has been] singled out and treated less favorably than others similarly situated on account of [national origin].” Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 537 (9th Cir.1982). Direct or circumstantial proof of discriminatory motive is required. Spaulding v. University of Wash., 740 F.2d 686, 700 (9th Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984), overruled on other grounds, Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir.1987) (en banc). This circuit has described the respective burdens of producing evidence in disparate treatment cases: In order to prevail in a Title VII disparate treatment case, a plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment decision. If the defendant carries its burden, the plaintiff is then afforded an opportunity to demonstrate that the “ ‘assigned reason’ was ‘a pretext or discriminatory in its application.’ ” Diaz v. American Tel. & Tel., 752 F.2d 1356, 1358-59 (9th Cir.1985) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 1826-27, 36 L.Ed.2d 668 (1973)) (emphasis in Diaz). However, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t. of Comm. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Casillas v. United States Navy, 735 F.2d 338, 342 (9th Cir.1984). “ ‘[T]he district court must decide which party’s explanation of the employer’s motivation it believes.’ ” Casillas, 735 F.2d at 342 (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 717, 103 S.Ct. 1478," }, { "docid": "6681254", "title": "", "text": "two claims; 1) that he was terminated in retaliation for his opposition to Metra’s allegedly discriminatory policies and 2) he was terminated due to his national origin. The court will deal with each claim separately. Examination of a Title VII claim, generally, is made pursuant to the burden shifting analysis stated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that analysis, the plaintiff has the initial burden to establish a prima facie case of discrimination. If the plaintiff is successful, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the challenged action. If the defendant is successful, the burden shifts back to the plaintiff to show that the articulated reason is pretextual. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. at 1824-26; see also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). In order to establish a prima fa-cie case of retaliation under Title VII, a plaintiff must show: 1) that he engaged in statutorily protected expression; 2) he suffered an adverse action by his employer and; 3) there is a causal link between the protected expression and the adverse action. Holland v. Jefferson National Life Insurance Co., 883 F.2d 1307, 1313 (7th Cir.1989). In order to have a protected expression under Title VII, a plaintiff need only have a reasonable belief that the practice challenged is in violation of Title VII. Holland, 883 F.2d at 1314. Moreover, Title VII protects not only formal charges of discrimination, such as charges filled with the Equal Employment Opportunity Commission, but informal complaints to supervisors as well. Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir.1990). Plaintiff claims he was retaliated against for complaining to Cole and Nielsen concerning possible hiring discrimination against minorities. Plaintiffs Response, p. 11-12. Plaintiff had a reasonable belief that a violation was occurring. As such, his expression is certainly protected under Title VII. As well, there is no question that plaintiffs termination is an adverse action by Metra. The remaining question" }, { "docid": "20344161", "title": "", "text": "or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s ... national origin. 42 U.S.C. § 2000e-2(a)(l) & (2). In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court described the burden of proof in a Title VII case as follows: (1) Plaintiff has the initial burden of establishing a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to “articulate some legitimate non-discriminatory reason” for the non-selection of plaintiff; and (3) if the employer does articulate such a reason, the burden shifts back to the plaintiff to prove that the reason given by the employer is not really legitimate and nondiscriminatory but is merely pretextual. Id. at 802-04, 93 S.Ct. at 1824-1825. Here, plaintiff has succeeded in presenting a prima facie case by demonstrating that (1) he is within a class protected by § 2000e-2(a); (2) he applied for and was qualified for a job the DOH, OHSM was trying to fill; (3) he was denied the job despite his qualifications; and (4) the DOH, OHSM continued to seek applicants for the position. Id. at 802, 93 S.Ct. at 1824. In rebuttal, the DOH, OHSM alleges that there were two reasons why, instead of promoting plaintiff, it retained the three provisional fiscal analysts pending new test results: (1) the director decided to exercise his option to choose from a list of at least three qualified applicants; and (2) the retained employees had all worked with the director, and he had confidence in their abilities. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-1095, 67 L.Ed.2d 207 (1981), the Court stated that the defendant’s rebuttal burden is only the burden of explaining clearly the non-discriminatory reasons for its actions. I am satisfied that they have done this. The burden of going forward thus reverts to plaintiff who" }, { "docid": "7628953", "title": "", "text": "VII protected class.” Id. Stating that “[t]he Supreme Court held in Espinoza v. Farah, that ... [Title VII] does not offer protection from discrimination on the basis of citizenship,” the district court held that plaintiffs had failed as a matter of law to make out a prima facie case of disparate treatment. Id. at 441 (citation omitted). The district court’s reliance on Espinoza was misplaced for two reasons. First, although the Supreme Court did hold that citizenship is not a facially-unlawful criterion for employment decisions, see 414 U.S. 86, 91, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), it also recognized that “an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination.” Id. at 92, 94 S.Ct. 334. Title VII, the Court said, “prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.” Id. That principle was of no assistance to the Espinoza plaintiffs, who alleged discrimination based on Mexican national origin: notwithstanding the employer’s citizens-only policy, there was no evidence of discriminatory purpose or effect since more than 96% of its employees were of Mexican descent. Id. at 93, 94 S.Ct. 334. Here, however, plaintiffs’ claims of pretext and disparate effect are not as easily brushed aside: the overwhelming majority of those who receive the pay differential are whites of non-Panamanian origin. See supra pp. 339— 40. If, as Espinoza proclaimed, Title VII truly does “prohibit[ ] discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin,” then courts must afford plaintiffs an opportunity to prove such a purpose or effect. See also 29 C.F.R. § 1606.5(a) (EEOC regulation) (“[Wjhere citizenship requirements have the purpose or effect of discriminating against an individual on the basis of national origin, they are prohibited by [T]i-tle VIL”). Second, “citizenship” is simply not the basis upon which the PCC differentiates, or even contends that it differentiates, among its employees. All of the plaintiffs are, in fact, American citizens. Nor is the issue whether" }, { "docid": "18859466", "title": "", "text": "the job market. See Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980); Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir.1993); Gonzalez v. Salvation Army, 985 F.2d 578 (11th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 2342, 124 L.Ed.2d 252 (1993). EEOC finding that English-only Policy is Discrimination The EEOC guidelines provide that an employee meets his or her burden of proving a prima facie case in a disparate impact cause of action merely by proving the existence of the English-only policy. See 29 C.F.R. § 1606.7(a) & (b) (1991). The EEOC has determined that an English only policy may “create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment”. 29 C.F.R. § 1606.7(a). This Court is not bound by the EEOC guidelines, Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339-40, 38 L.Ed.2d 287 (1973), and does not find the language of Title VII supportive of the EEOC’s conclusion. See Spun Steak, 998 F.2d 1480 (for a discussion of Congressional intent and the implementation of Title VII). 42 U.S.C. § 2000e-2(k)(1)(A) sets forth the plaintiffs burden of proof in disparate impact cases: (k) Burden of proof in disparate impact eases (1)(A) An unlawful employment practice based on disparate impact is established under this subehapter only if— (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; ... The EEOC’s determination that the mere existence of an English-only policy satisfies the plaintiffs burden of proof is not consistent with the drafting of the statute but is rather agency-created policy. The plaintiff still bears the burden of showing a prima facie case of discrimination. A prima facie case of discriminatory impact requires the plaintiff to identify a seemingly neutral practice that has a significant adverse impact on persons of a protected class. Connecticut" }, { "docid": "23496526", "title": "", "text": "and to H & R Block on the contract claims is void. C. Discrimination Claims Against H & R Block Turning to the sex and age discrimination claims against H & R Block, Meinecke con tends that the district court erred in granting summary judgment on these claims because she presented sufficient evidence to raise a genuine issue of material fact regarding the reasons for her forced retirement. Specifically, Meinecke argues that this evidence established a prima facie case of sex and age discrimination and demonstrated that H & R Block’s proffered reasons for her retirement were pretextual. H & R Block responds that Meinecke could not meet her burden of proving discrimination because she was legitimately terminated as part of H & R Block’s plan to close its Houston headquarters office. Title VII provides that “[i]t shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). The ADEA proscribes similar treatment on the basis of age. 29 U.S.C. § 623(a)(1). The same evidentiary procedure for allocating burdens of proof applies to discrimination claims under both statutes. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir.1993); Fields v. J.C. Penney Co., 968 F.2d 533, 536 n. 2 (5th Cir.1992). Initially, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Bodenheimer, 5 F.3d at 957. The prima facie case, if established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981); Bodenheimer, 5 F.3d at 957. If the defendant satisfies this burden, the presumption disappears, and the plaintiff must prove that the proffered reasons are a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks, — U.S. —, —, 113 S;Ct. 2742, 2747," }, { "docid": "22138140", "title": "", "text": "he “was constructively discharged on July 5, 1985.” In paragraph two, he asserts that he “was discharged ... because of his race, color or national origin.” In his Memorandum in Opposition to Defendant’s Motion for Summary Judgment he states that “through hostile language, excessive criticism in day-to-day operations, performance reviews and the threat of termination after a 90-day development period, plaintiff could no longer tolerate the abuse of his supervisor and ultimately resigned.” These allegations also appear in paragraph nine of the complaint. Accordingly, plaintiff sufficiently alleged a constructive discharge claim. A. § 1981 and Discriminatory Discharge § 1981 provides that: “All persons within the jurisdiction of the United States shall have the same right in every State ... to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, ____” A plaintiff alleging that he was discharged in violation of § 1981 carries the initial burden of establishing a prima facie case of discrimination by showing that (1) he belongs to a protected minority; (2) he is qualified for the position; (3) he was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of racial discrimination. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-54, n. 6, 101 S.Ct. 1089, 1093-94 n. 6, 67 L.Ed.2d 207 (1981) (Title VII); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (Title VII); Martin v. Citibank, N.A., 762 F.2d 212, 216-17 (2d Cir.1985) (McDonnel Douglas standard of liability applies equally to § 1981 actions); Williams v. State Univ. of N.Y., 635 F.Supp. 1243, 1249 (E.D.N.Y.1986) (§ 1981 discriminatory discharge). Upon making this showing, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer satisfies its burden, the plaintiff has an opportunity to show that the employer’s stated reason is pretextual. See id. at 804, 93 S.Ct. at 1825. We begin by considering briefly" }, { "docid": "14907229", "title": "", "text": "the latter proscribe intentional discrimination on the basis of race, national origin, and age. Contrary to the apparent assumption of the Second Circuit Court of Appeals in Sumitomo, national origin discrimination and citizenship discrimination are distinct phenomena. Indeed, the Supreme Court held in Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88, 94 S.Ct. 334, 336-37, 38 L.Ed.2d 287 (1973), that Title VII was not intended to bar discrimination on the basis of citizenship, reasoning that, “the term ‘national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.” Inherent in the Court’s reading of Title VII and its history, is a Congressional determination that a trier of fact can distinguish national origin discrimination from citizenship discrimination and, accordingly, that courts can impose liability on the basis of the former without imposing it for the latter. KAL stresses the economic burden that will result from requiring foreign businesses to defend in court the motivation behind their personnel decisions, and also expresses concern about the likelihood of confusion or local prejudice on the part of factfinders. It argues that these concerns will have the effect of discouraging foreign businesses from exercising their Article VIII(l) right and, therefore, will ultimately discourage foreign investment in the United States contrary to the intent of the Treaty. These concerns are certainly not fanciful and it is reasonable to expect that they may have some impact on the decisionmaking of foreign businesses operating in the United States. On the other hand, defending personnel decisions is a fact of business life in contemporary America and is a burden that the domestic competitors of foreign enterprise have been required to shoulder. Moreover, while we recognize that factfind-ers can and do err from time to time, the relevant issue is whether there is reason to believe that the instances of error will be materially greater in Title VII and ADEA cases where a foreign employer has exercised its Article VIII(l) right than in other cases filed under those statutes. Where a foreign business has" }, { "docid": "23240168", "title": "", "text": "(3) imposed back pay liability on defendants Local and International, jointly and severally; and (4) ordered all de fendants to pay reasonable attorneys’ fees and costs. II. TITLE VII CLAIM In Espinoza v. Farah Manufacturing Co., this Court held that an employer’s refusal to hire an applicant because of her lack of United States citizenship did not fall within the prohibition of Title VII of the Civil Rights Act of 1964 against employment discrimination on the basis of national origin, 42 U.S.C. § 2000e-2(a) (1) (1970). On the authority of Espinoza the court below concluded that plaintiff-appellee-Guerra not entitled to relief under Title VII, reasoning that any discrimination against Guerra turned on his status as an alien and on the foreign residence of his family rather than on his national origin. After the district court’s decision, the Supreme Court affirmed our decision in Espinoza, Espinoza v. Farah Manufacturing Co., 1973, 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287. The Court did note that Title VII protected aliens otherwise within its coverage from discrimination based on race, color, religion, sex, or national origin, and that a citizenship requirement might be unlawful if it were “but one part of a wider scheme of unlawful national origin discrimination” or had “the purpose or effect of discriminating on the basis of national origin.” 414 U.S. at 92, 94 S.Ct. at 338, 38 L.Ed.2d at 293. The Court concluded, however, that Title VII did not apply to discrimination based solely on lack of United States citizenship. Like Mrs. Espinoza, appellee Guerra has failed to demonstrate that he suffered from discrimination based on his national origin rather than on his status as an alien. We therefore affirm the district court’s denial of relief under Title VII. III. SECTION 1981 CLAIM: LIMITATIONS Appellants make a broad-based attack on the district court’s treatment of the portion of the case resting on 42 U.S.C. § 1981. We consider first the argument that Guerra’s § 1981 claim was barred by limitations. As the district court recognized, when an action is brought for back pay or similar damages under a" }, { "docid": "12675005", "title": "", "text": "in the instant action. That contention presents two issues for decision: (1) the inclusion of discrimination against Spanish-surnamed individuals within the cause of action under Title VII, and (2) the applicability of § 1981 to alleged discrimination against Spanish-surnamed individual. a. The inclusion of discrimination against Spanish-surnamed individuals in the cause of action under Title VII. Plaintiffs contend that discrimination against Spanish-surnamed individuals must be included within the scope of their cause of action under Title VII. We shall limit the Title VII action to racial discrimination against blacks, and go hold for the following reasons: Unlike 42 U.S.C. § 1981, Title VII prohibits discrimination based upon national origin. 42 U.S.C. § 2000e-2. As the term is used in Title VII, “national origin” refers not to alienage, but to “the country where a person was born, or, more broadly, the country from which his or her ancestors came”, Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88, 94 S.Ct. 334, 336, 38 L.Ed.2d 287 (1973). Discrimination against individuals solely because of a Spanish-speaking background clearly falls within the proscription of the statute, id,., 414 U.S. at 92, n. 5, 94 S.Ct. 334, 38 L.Ed.2d 287. In this case, however, the named plaintiffs are both black. Jones filed a charge of discrimination with the EEOC on July 7, 1971, in which he alleged harassment by UGI supervisors and fellow employees because he was black, and further asserted that “the Company’s employment practices operate in such a manner as to limit the opportunities for Negroes in terms of hire, classification, promotional terms and other conditions of employment.” McCracken did not file a charge with the EEOC, although we previously ruled that he may remain a named plaintiff in the action, subject to the limitation that he cannot raise any issues which were not proferred by Jones. Memorandum and Order of September 25, 1974, 383 F.Supp. at 426. See Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 499 (5th Cir. 1968). Neither Jones nor McCracken is Spanish-surnamed, and thus neither can claim that he is the victim of discrimination on the basis of" }, { "docid": "16417149", "title": "", "text": "discriminatory discharge. 2. Indirect Evidence: McDonnell Douglas Burden Shifting Since the plaintiff has presented no direct evidence of national origin or race discrimination, the Court turns to the McDonnell Douglas framework, under which the plaintiff must first make a prima facie showing of discrimination, which is done by establishing (1) that plaintiff is a member of a protected class; (2) that plaintiff performed his or her job satisfactorily; (3) that plaintiff was discharged; and (4) that plaintiff was replaced by someone of the same qualifications but outside the plaintiffs protected class. Id., 411 U.S. at 802, 93 S.Ct. at 1824; St. Mary’s, 509 U.S. at 506, 113 S.Ct. at 2746-47.- As with disability discrimination, if a plaintiff establishes a prima facie case, a rebuttable presumption of discrimination shifts the burden of production to the defendant to provide a legitimate, non-diseriminatory explanation for the adverse employment decision. St. Mary’s, 509 U.S. at 506, 113 S.Ct. at 2746-47. If the defendant offers a legitimate, non-discriminatory explanation, the burden of production shifts back to the plaintiff to demonstrate that the defendant’s reason is a pretext for discrimination and that a discriminatory animus motivated the termination. St. Mary’s, 509 U.S. at 507 & 515, 113 S.Ct. at 2747 & 2751-52. Not only has Kalekiristos failed to establish a prima facie case of race and/or national origin discrimination, the plaintiff has failed to adduce enough admissible evidence to raise genuine doubt as to the legitimacy of the defendant’s motive, and to show that the adverse employment action was motivated by intentional race or national origin discrimination. a. First Element: Membership in Protected Class Although it is well-established that blacks make up a protected race class pursuant to Title VII, it is less clear what comprises a protected class for national origin discrimination, and courts have noted the legislative history concerning the meaning of national origin provides little guidance. The Supreme Court, in Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), noted, “[t]he term ‘national origin’ on its face refers to the country where a person was born," }, { "docid": "21449768", "title": "", "text": "we conclude that Salas’ EEOC charge was timely. B. Salas’ Title VII Claims Because the timeliness issue is not dis-positive of the Title VII claims, we must determine whether Salas has offered evidence sufficient to establish a prima facie case of either national origin discrimination or retaliation. 1. National Origin Discrimination To make a prima facie case of disparate treatment based on national origin, a plaintiff must prove that 1) he was a member of a protected class, 2) he was meeting his employer’s legitimate business expectations, 3) he suffered an adverse employment action, and 4) his employer treated similarly situated employees outside of the class more favorably. Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.2005). Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for the decision. Id. If the defendant satisfies its burden, then the burden shifts back to the plaintiff to show that the defendant’s explanation was pretextual. Id. Salas claims that he offered evidence from which a jury reasonably could find a prima facie case of discrimination. He alleges that 1) he is Hispanic, 2) he was not disciplined during the first seventeen years of his career and was promoted regularly, 3) he was terminated from his position, and 4) similarly situated non-Hispanic employees were not terminated for similar or more severe disciplinary infractions. The DOC contests the first and fourth prongs of the prima facie case, and it asserts that Salas’ rule violations constituted a legitimate, non-discriminatory basis for his termination. As to the first prong, the DOC maintains that Salas’ allegation that he is Hispanic is insufficient to support a claim of national origin discrimination. In Espinoza v. Farah Manufac turing Co., the Supreme Court recognized that national origin “refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.” 414 U.S. 86, 88, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973) (concluding that “national origin” does not refer to citizenship). The DOC correctly notes that Salas did" }, { "docid": "5515723", "title": "", "text": "are jury functions.” Albritton, 944 F.Supp. at 970. Purely legal determinations are, however, the province of the Court. Id. III. Analysis A. Race and Sex Discrimination under Title VII 1. Applicable Law The Civil Rights Act of 1964, as amended, prohibits discrimination in federal employee personnel actions on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16. To prevail in the typical Title VII action, a plaintiff must satisfy a three-part analysis. The Supreme Court wrote in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that “the complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.” The plaintiff must prove that the defendant acted with discriminatory intent, General Bldg. Contractors v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982), although he may use circumstantial evidence to satisfy that showing. Thomas v. National Football League Players Ass’n, 131 F.3d 198 (D.C.Cir.1997). Once the plaintiff has made out a prima facie case, the burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for its conduct. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817. The burden then shifts back to the plaintiff to provide some evidence, either direct or circumstantial, that the articulated reason for the defendant’s conduct is merely pretextual. Summary judgment “is appropriate where either the evidence is insufficient to establish a prima facie case, ... or, assuming a prima facie case, there is no genuine issue of material fact that the defendant’s articulated non-discriminatory reason for the challenged decision is pretextual.” Paul v. Federal Nat'l Mortgage Ass’n, 697 F.Supp. 547, 558 (D.D.C.1988). 2. Plaintiffs Prima Facie Case To establish a prima facie case of racial or gender discrimination under Title VII, Plaintiff must demonstrate that: 1) he applied for a position; 2) he was qualified for that position; 3) he was rejected for the position under circumstances giving rise to an inference of discrimination; and 4) other employees in the favored group with similar" } ]

[ { "docid": "10126888", "title": "", "text": "must be determined whether trial counsel might have had a tactical reason for not making such an investigation. The district court’s conclusion that trial counsel had no valid tactical reasoning behind his failure to perform a background investigation for possible mitigating evidence is supported by a number of considerations in combination. First, defendant’s trial counsel, Fred Robbins, testified that he did not know of the existence of psychiatric records and that his failure to seek them out was not the result of any trial strategy. He further testified that had he known of the records he would have presented them for mitigation. Second, Robert Link, an attorney who has handled numerous murder and capital cases after having read the trial transcripts and seen the evidence brought forth at the evidentiary hearing, testified as an expert that trial counsel had conducted insufficient background investigation into Middleton’s case to uncover possible mitigating evidence. He testified that he could think of no strategic reason for not investigating a client’s background in search of mitigating evidence even though, for tactical reasons, it might not be used later. Third, the record at the sentencing proceeding supports the conclusion that trial counsel had no discernible strategy. At sentencing, he merely argued that the electric chair was a horrible form of execution, and that the aggravating circumstances did not outweigh the mitigating circumstances. Contrary to the State’s assertions, there is no evidence to suggest that his failure to introduce the mitigating evidence was a strategic choice based upon maintaining defendant’s innocence, as in Funchess v. Wainwright, 772 F.2d 683 (11th Cir.1985), in the hope of raising sufficient doubt in the jury’s mind so that they might conclude that death was an inappropriate sentence here, despite conviction. Trial counsel simply failed to make any effort to investigate Middleton’s background and, therefore, had nothing to introduce to mitigate the sentence of the jury. ACTUAL PREJUDICE Having concluded that the assistance provided by trial counsel at the sentencing phase was ineffective, a determination is made as to whether, but for counsel’s unprofessional errors, there is a reasonable probability that the" } ]

[ { "docid": "12139695", "title": "", "text": "AFFIRMED IN PART and REVERSED IN PART and REMANDED for the purpose of conducting an evidentiary hearing into the reasons why Petitioner’s state appellate counsel did not raise the issue of prosecutorial misconduct in the state appeal and for further determination of the issue of adequate representation in light of the evidence produced. In addition, the district court shall enter a declaratory judgment that the death sentence on the count relating to Ms. Bourque is invalid and unenforceable. Cf Chaney v. Brown, 730 F.2d 1334, 1358 (10th Cir.1984). . Petitioner has received both direct and post-conviction review of his sentences in the courts of the state. The record before the federal district court and that here on appeal contains the entire transcript of the trial as well as the evidence taken and the arguments heard in the state postconviction proceeding. . Hypnosis was also used in the interrogation of another witness, but use of the procedure was not disclosed in her testimony. Petitioner predicates an argument of constitutional error on the hypnosis of this witness as well, as we shall discuss in part III. . The State did introduce a copy of a judgment of conviction indicating Petitioner's prior conviction of the crime of armed robbery. . During the course of the state postconviction hearing, defense counsel testified that he had discussed with Petitioner the possibility of “putting on the one witness who was related to one of the victims.” At the same hearing, co-counsel testified: \"I believe that this particular witness, who was a sister of one of the victims, ... certainly didn’t want him to get the death penalty.” From this testimony, we assume the representation that \"relatives\" would be called was an inaccurate representation and that only one person was available as a witness. . Petitioner suggests that because this witness testified in the first phase, she must have known him well enough to testify to mitigating circumstances beyond her personal desires. While the record indicates Ms. Lovejoy’s sister, Mary Bridget. Davis, testified in the first phase as a defense witness, she was not identified as the" }, { "docid": "1480007", "title": "", "text": "phase of Armstrong’s trial was negligible. The attorney had been a member of the bar for only eight weeks, and this was the first serious criminal trial he had ever handled. When asked why his preparation for the penalty phase was so limited, the attorney said: “I think it was my inexperience coupled with the fact that it was a new procedure.” He explicitly testified that it was not in any way a strategic or tactical decision. The district court correctly found that trial counsel’s failure to investigate and present mitigating evidence fell below the objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; see also Elledge, 823 F.2d at 1445 (failure to interrogate petitioner’s relatives and to seek an expert witness was outside range of competent assistance); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.), cert. denied, — U.S. —, 107 S.Ct. 602, 93 L.Ed.2d 601 (1986). The state argues that the district court failed to properly apply the prejudice prong of the Strickland test, because the mitigating character evidence obtained at the evi-dentiary hearing was either brought out at some point during the guilt or sentencing phase of the trial or the jury would have viewed the evidence as aggravating. We disagree. The major requirement of the penalty phase of a trial is that the sentence be individualized by focusing on the particularized characteristics of the individual. See Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982); Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976). The evidence before the district court plainly established that Armstrong’s trial counsel failed to provide the jury with the information needed to properly focus on the particularized characteristics of this petitioner. Armstrong and various family members testified about his poverty and the poor living conditions of his childhood. Armstrong’s grandmother testified that Armstrong did not have adequate adult supervision as a child. She further testified that his work as a fruit picker during his early years supplemented his grandmother’s income, but resulted in irregular school" }, { "docid": "23223059", "title": "", "text": "Even if counsel’s performance was deficient, the presence of other evidence of violent acts makes that deficiency inconsequential. Counsel’s lack of explanation did not render the proceedings fundamentally unfair or unreliable. 4. Was Trial Counsel Ineffective During the Penalty Phase Because he Failed to Present Other Mitigating Evidence? Mr. LaFevers contends that his trial counsel was aware of, but did not use, testimony of two men who claimed that the co-defendant in the case, Cannon, had “confessed” to them while they were incarcerated together in prison. Mr. La-Fevers claims both men would have testified that Cannon took the responsibility for the murder and the burning of Ms. Hawley. “While this does not excuse Mr. LaFevers from being guilty of the crime charged,” petitioner argues, “it could certainly prove critical when the jury deliberated the sentence during the second stage of the trial.” The district court reviewed this claim carefully and rejected it because it found no prejudice. The court noted: Petitioner’s two sentence summary of the two interviews ignores the true nature of the prisoners’ rendition of Petitioner’s involvement in the murder of Ms. Hawley. In each inmate’s interview, it is clear that Petitioner was a principal in the burglary, robbery and kidnapping; that he purchased the gasoline which was poured on Ms. Hawley and her car; and he knew that Cannon intended on murdering Ms. Hawley, but did nothing to stop the murder. Further, both inmates stated that Petitioner served as the “lookout” while Cannon raped and killed Ms. Hawley. Finally, both inmates stated that Petitioner, Cannon and a third man worked together to burn Ms. Hawley’s car. These facts demonstrate that Petitioner was a major participant in the criminal activities.... Further, since Petitioner took no action to prevent the murder of Ms. Hawley it is clear that he acted with a reckless indifference to human life. Therefore, under Tison v. Arizona, Petitioner’s death sentence would have been appropriate even if the inmates had testified and the jury believed their version of the rendition of the events. Finally, it should be noted that Petitioner’s trial counsel apparently made a" }, { "docid": "16669365", "title": "", "text": "took less than half a day. Mr. Bishoff filed several pretrial motions including a motion to suppress Ms. Tyler’s statement,- a motion for a change of venue due to pretrial publicity, and a motion for a psychiatric examination. All of these were denied by the trial judge. At trial, Bishoff presented two witnesses for the defense: Shirley Tyler and her oldest son Tony, who was then thirteen. Ms. Tyler testified at trial that her husband had been depressed and that he committed suicide after she had refused to give him poison. The state offered two explanations of Ms. Tyler’s motive for killing her husband. One theory was that she killed him in order to receive life insurance benefits. The second theory was that she was having an extramarital affair. The jury convicted Ms. Tyler of first-degree murder. No evidence was introduced by either party at the sentencing phase of the trial. The jury imposed the death penalty and more specifically found the presence of the aggravating circumstance that Mr. Tyler’s death was “inhuman in that it involved torture.” O.C.G.A. § 17-10-30(7). On direct appeal to the Georgia Supreme Court, petitioner’s conviction and sentence were affirmed. Tyler v. State, 247 Ga. 119, 274 S.E.2d 549 (1981). The Supreme Court denied Ms. Tyler’s petition for a writ of certiorari. Tyler v. Georgia, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Petitioner exhausted the state collateral remedies and filed the instant petition in January of 1982. Two evidentiary hearings were held, one in September of 1982 and the second hearing in November of 1982. The magistrate issued his report and recommendation finding no merit in any of petitioner’s claims. Petitioner objected to the report and the district court subsequently granted habeas corpus relief as to the sentence of death. There are five issues on appeal in this case; three of which are appealed by the state and two of which are raised on cross-appeal by Ms. Tyler. The state raises the following issues: (1) whether the district court erred in finding that Ms. Tyler was denied effective assistance of counsel in" }, { "docid": "20585308", "title": "", "text": "not foreclose counsel from calling mitigation witnesses. During the sentencing phase, the State put forward evidence of three aggravating factors it claimed supported a sentence of death: Daisy Hallum’s death was especially cruel, heinous, and atrocious; Mr. Ryder knowingly created a grave risk of death to more than one person; and there existed a probability that Mr. Ryder would commit acts of violence that would constitute a continuing threat to society. After the State rested, Mr. Ryder left the courtroom for the defense’s presentation of its mitigation evidence. Defense counsel called family friend Sue Epley and jail staff member Sue Watkins. Ms. Epley testified that she had known Mr. Ryder for several years and he was honest, decent, hardworking, and not violent, but he was a loner who often talked about going to the Yukon in anticipation of the end of the world. Ms. Watkins, a dispatcher at the county jail where Mr. Ryder was then inearcerated, testified that Mr. Ryder was quiet and gave no problems to jail staff or other inmates. The jury then deliberated and recommended a sentence of life in prison without parole for Sam Hallum’s murder and death for Daisy Hallum’s murder. The trial court sentenced Mr. Ryder accordingly. 2. Direct Appeal, Retrospective Competency Hearing, and State Postconviction Proceedings Mr. Ryder appealed his conviction and sentence to the OCCA. On appeal, Mr. Ryder was represented by new counsel, Gloyd L. McCoy. He argued, among other things, that the trial court erred in failing to make a proper competency determination prior to the sentencing phase and that trial counsel rendered ineffective assistance by failing to notify the court of the competency issues before trial' and by failing to present an adequate mitigation case. The OCCA remanded the case to the trial court to conduct a hearing to determine whether a retrospective competency trial was feasible, and, if so, to conduct such a trial to determine whether Mr. Ryder had been competent to stand trial. On remand, the trial court determined that a retrospective competency hearing was feasible. The trial court thus began the process of selecting" }, { "docid": "23223056", "title": "", "text": "stolen car, to a remote location so that she could be murdered before she identified Petitioner and Cannon as the men who burglarized her home and stole her car. We agree with the district court’s assessment of the evidence. 3. Was Trial Counsel Ineffective for Failing to Explain That Mr. La-Fevers’ Nolo Contendere Plea Could be Used Against Him in the Penalty Phase of the Second Trial? Mr. LaFevers posits that at the time he made his nolo contendere pleas to the Paden/Austin crimes, he was told by his attorney the plea could never be used against him as an admission of guilt. Specifically, he argues his trial counsel was ineffective for failing to explain that his nolo contendere plea could be used against him in the penalty phase of the second trial. To succeed on this issue, however, petitioner must demonstrate that his lawyer’s deficient performance prejudiced his defense. To make out prejudice, he must demonstrate there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. The proper focus is on whether counsel’s ineffectiveness rendered the proceedings fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369-73, 113 S.Ct. 838, 842-44, 122 L.Ed.2d 180 (1993). The federal district court concluded there was no prejudice here because the state had presented other evidence of Mr. LaFevers’ crimes against Ms. Paden and Ms. Austin. Specifically, the court stated: Further, even if this Court were to agree that Petitioner’s nolo contendere pleas were inadmissible (which it does not), evidence of Petitioner’s crimes against Ms. Paden and Ms. Austin would have been admissible under state law. The Court of Criminal Appeals has been consistent in its approval of the use of unadjudicated bad acts as evidence to support the “continuing threat” aggravating circumstance. Ms. Paden and Ms. Austin testified as to the acts of Petitioner and [his co-defendant] Cannon during the second stage of Petitioner’s trial.... We agree with the district court’s conclusion that Mr. LaFevers’ suffered no prejudice. Even if he had not pleaded nolo contendere, the prosecution would have in" }, { "docid": "9849768", "title": "", "text": "was evidence available that the defendants had had a particularly deprived childhood and were beaten by their fathers. Their life histories suggested a pattern of criminal behavior and influence and domination by certain criminal elements. In each case the Court concluded that the decision not to put on such evidence was a matter of trial strategy which could not be second guessed on habeas corpus review. Mr. Woodard’s case is substantially different. There was no evidence that Mr. Woodard’s childhood or family history had been particularly traumatic. He had no history of violent behavior. He had no criminal record, other than arrests for minor crimes. The petitioner’s theory is that his trial counsel erred in failing to put him on the stand to attest to his human qualities, and in failing to call witnesses who could have testified about his good points. At the outset, the Court would point out that it finds no constitutional error in failing to call either Mr. Inzer or Ms. Jones to testify in the petitioner’s behalf. The Court had the opportunity to assess the testimony of Mr. Inzer at the habeas hearing and found nothing in his testimony that would have added a great deal to the petitioner’s mitigation claim. His comments were general, and did not appear to be based on any intimate knowledge of or relationship with the petitioner. The Court finds it difficult to believe that Mr. Inzer’s statements would have influenced the jury to any extent. Ms. Jones’ deposition reveals that her recollection of the petitioner was based largely on her perceptions of him as a boy. The Court was left with the impression that she really did not know him all that well, as an adult. The critical question is whether Mr. Dabney was constitutionally obligated to call his client as a witness at the penalty phase, and whether Billy Woodard was materially prejudiced by that failure. This is a most difficult question. In the final analysis, the Court concludes that Mr. Dabney’s penalty phase presentation was constitutionally adequate. This conclusion is based on the following: (1) Mr. Woodard," }, { "docid": "10446843", "title": "", "text": "9 — 1(c); People v. Johnson, 114 Ill.2d 170, 102 Ill.Dec. 342, 359, 499 N.E.2d 1355, 1372 (1986), and requires the sentencer to consider these mitigating factors as part of its deliberation. Only if the sentencer unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death penalty is the sentencer empowered to return a death sentence. However, in those cases in which the sentencer does make this finding, the court must sentence the defendant to death. This review of the statutory scheme makes clear that mitigating factors pla,y an extremely important role in the determination whether a defendant shall live or die. As we earlier noted, Petitioner’s sentence was determined by the same jury that determined his guilt. At the first stage of the sentencing hearing, the State proved that Petitioner was at least 18 years old at the time of the commission of the murders and that he had been convicted of two murders in the course of an armed robbery. Petitioner presented no evidence at that phase,, and the jury found Petitioner eligible for the death penalty. At the second stage, the State presented five witnesses in aggravation. The first was Paulette Rubio, who testified that she was a school teacher and that in March 1976, while she was walking to a teacher’s meeting, three teenagers, including Petitioner, knocked her down and took her purse. Ms. Rubio testified that she was visibly pregnant at the time. She further indicated that she signed a complaint against Petitioner and testified against him at his trial, at which he was found guilty. The State next called Virginia (“Lala”) Harris, who testified that she had been dating Petitioner for a period of months before the murders. Ms. Harris gave damaging testimony, indicating, for example, that she had asked Petitioner why he had killed the two victims and he had responded that “he wouldn’t have killed them” and that “none of this would have happened” if she had not left him. See Tr. at 871. She also testified that Petitioner made threatening remarks to her, both by" }, { "docid": "9849769", "title": "", "text": "the opportunity to assess the testimony of Mr. Inzer at the habeas hearing and found nothing in his testimony that would have added a great deal to the petitioner’s mitigation claim. His comments were general, and did not appear to be based on any intimate knowledge of or relationship with the petitioner. The Court finds it difficult to believe that Mr. Inzer’s statements would have influenced the jury to any extent. Ms. Jones’ deposition reveals that her recollection of the petitioner was based largely on her perceptions of him as a boy. The Court was left with the impression that she really did not know him all that well, as an adult. The critical question is whether Mr. Dabney was constitutionally obligated to call his client as a witness at the penalty phase, and whether Billy Woodard was materially prejudiced by that failure. This is a most difficult question. In the final analysis, the Court concludes that Mr. Dabney’s penalty phase presentation was constitutionally adequate. This conclusion is based on the following: (1) Mr. Woodard, had he testified as he stated he would, would have continued to deny complicity in the crime, and therefore would have expressed no remorse; (2) any statements by the petitioner expressing sorrow for the Baker family, or sorrow for mistakes in his life, would have been inconsistent with his statement that he had nothing to do with the murder; (3) petitioner’s expression of past mistakes would have been more aggravating than mitigating; (4) petitioner’s occupational skills, at least his mechanical abilities, were already before the jury through his testimony at the guilt phase; and (5) petitioner’s testimony regarding his worthwhile occupational skills and personal values would have subjected him to damaging cross examination. As pointed out by respondent and tacitly acknowledged by the petitioner, Mr. Woodard did not lead a model life, even though he did not have a history of criminal activity. His wife supported him. Although he offered his diabetes as a justification for his inability to hold a steady job, it was evident that he spent most of his time hunting and" }, { "docid": "22252476", "title": "", "text": "help pay for her education, and desired to become a nurse. On direct appeal, petitioner challenged the admissibility of Mr. Allen’s testimony. The Supreme Court of Georgia found that his testimony was admissible to rebut an inference that could have been drawn from evidence presented during the guilt phase of the trial that Ms. Allen had participated in the robbery; during the guilt phase of the trial, the defense elicited testimony from Joyce Brown, the assistant manager of the Majik Market, who said that when she arrived at the Majik Market shortly after Ms. Allen was abducted, she discovered the safe unlocked and undamaged. According to the Supreme Court of Georgia, Ms. Allen’s participation in the robbery would have constituted a mitigating factor that the State was entitled to rebut. In this appeal, the State has also raised an alternative justification, not considered by the Supreme Court of Georgia, for the admissibility of Mr. Allen’s testimony. The State now argues that it was seeking to prove the statutory aggravating circumstance that the crimes charged (rape and murder) were committed while the defendant was engaged in the commission of an additional capital felony or aggravated battery (armed robbery or kidnapping as well as rape or murder). See O.C.G.A. § 17-10-30(b)(2) (1982). The State contends that the defense could have argued that Ms. Allen participated in the robbery and willingly departed with those who committed it, thus diminishing the State’s showing as to this aggravating factor. Thus, the State urges that it permissibly introduced Mr. Allen’s testimony to rebut any inference that his daughter was involved in the robbery or willingly accompanied the perpetrators. After reviewing the entire record, we find these arguments unconvincing. In the first instance, under either the rationale advanced by the Supreme Court of Georgia or the alternative justification, now advanced by the State, there was no reason to introduce the testimony of Mr. Allen in rebuttal after the defendant had put on his evidence at the sentencing hearing. The defense's ease at sentencing consisted of petitioner’s reiteration of his innocence, his plea for mercy, and his mother's" }, { "docid": "13389408", "title": "", "text": "evinced by the presence of “defensive wounds\"; the victim had been stabbed twenty-one times; she bled to death as a result of the severing of the carotid artery, as evinced by the great amount of blood around her body; she had numerous defensive wounds on her arms, hands, and sides indicating that she was attempting to defend herself from the petitioner; the petitioner stated that he knew the victim was dead or dying because “she was ... drowning in her own blood\"; and finally, the petitioner stated that after stabbing the victim he \"sat down on the couch and watched Karen Stapleton thrash in her own blood.” Brewer v. State, No. CRF-78-2137, at 8-9 (Tulsa County Dist.Ct. Sept. 21, 1988). . Mr. Bums, then deceased, did not testify at the federal hearing. . Although the briefs in this case were filed prior to our decision in Brecheen, at oral argument, the State conceded that, under Brecheen, Mr. Brewer's ineffective assistance of counsel claim was not procedurally barred. . In so doing, we need not, and therefore do not express any opinion as to whether Mr. Brewer’s trial counsel's performance was deficient. . Ms. Church testified regarding Mr. Brewer's competence to assist his counsel at trial and on the importance of placing mitigating psychological testimony before a sentencing jury. In all other respects, her testimony essentially paralleled that of Dr. Fleming. See R.Vol. VIII at 92-104. In this appeal, Mr. Brewer's claims relate only to the sentencing phase of his trial. Furthermore, regarding Mr. Brewer’s competence during the penalty phase, at oral argument counsel for Mr. Brewer conceded, \"Mr. Brewer was competent, I believe, from a legal standpoint.” Thus, Mr. Brewer’s competence to assist counsel during the penalty phase is not at issue in this case, and any question regarding his competence to stand trial for the substantive criminal offense is not properly before us. . The district court concluded that this diagnosis was essentially the same as that of Dr. Gagliano. R.Vol. I, Doc. 53 at 13. In his trial testimony, Dr. Gagliano characterized Mr. Brewer as having a “personality" }, { "docid": "23249157", "title": "", "text": "does argue, however, that there is a reasonable probability that Ms. Howard’s information would have changed the result in the penalty phase of the trial. Mr. Duvall asserts that Ms. Howard’s statements would have supported his theory that he had spent the morning of the murder trying to stop his wife’s drug use. Such mitigating evidence, Mr. Duvall contends, would have been critical during the penalty phase of the trial. We disagree. After reviewing the entire record, we conclude that there is no reasonable probability that disclosure of Ms. Howard’s statement would have produced a different verdict. The jury was already aware that Mr. Duvall claimed that he murdered his wife because of her drug use. Moreover, when Mr. Duvall’s attorney investigated Mr. Duvall’s claims that Karla abused drugs, he found no other objective evidence to support these claims. For example, the state’s medical examiner, Dr. Fred Jordan, testified that he found no evidence of drug use by the victim. In addition, Connie McKinney, the victim’s neighbor, testified that Karla did not appear to be using drugs when she spoke with her on the evening of her death. Ms. McKinney also testified that she had not observed Karla using drugs in the year that Ms. McKinney had known the victim. Under these circumstances, we are confident that the outcome of the penalty phase would have been the same had this evidence been disclosed to the defense. Thus, Mr. Duvall is not entitled to habeas relief on this ground. III. Lessee-Included Offense Mr. Duvall next contends that the district court violated his Fourteenth Amendment due process rights by instructing the jury only on first degree murder and refusing to instruct the jury on second degree murder and first degree manslaughter. In Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980), the Supreme Court held that in a capital case, due process requires that a jury be given the option of convicting a defendant on a lesser included noncapital offense if the evidence would support conviction on that offense. The Court in Beck sought to avoid" }, { "docid": "2737691", "title": "", "text": "capital sentencing hearing. In addition, the majority ignores the mitigating potential of nearly all of the available evidence and the fact that some of the evidence that counsel failed to investigate or present does not involve violence or harmful behavior by Abdur’Rahman. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1514, 146 L.Ed.2d 389 (2000) (noting that the presence of unfavorable records did not justify “the failure to introduce the comparatively voluminous amount of evidence that did speak in [petitioner’s] favor”). Had counsel adequately performed, the jury weighing whether a death sentence was an appropriate punishment for Ab-dur’Rahman would have had a representative picture of the person they were sentencing, instead of the one-sided account upon which they based their decision. Like the petitioner recently before the Su preme Court, Abdur’Rahman has “a constitutionally protected right ... to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer.” Williams, — U.S. at -, 120 S.Ct. at 1513. Given the total lack of mitigating evidence presented at Abdur’Rahman’s sentencing hearing, “counsel’s conduct so undermined the proper functioning of the adversarial process that the [sentencing hearing] cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052; see also Austin, 126 F.3d at 848; Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir.1995). I respectfully dissent. . I use Abdur'Rahman’s present name throughout when referring to him, even in the context of events that occurred or documents created when the petitioner went by the name of Jones. . As the district court stated: During the hearing in this Court, Nancy Lancaster, Petitioner's half-sister, testified about the abuse and difficulties Petitioner experienced during his childhood. Although some of the information Ms. Lancaster related was based on statements made by other family members, the Court was very impressed with Ms. Lancaster’s credibility and demeanor. Ms. Lancaster testified that she and the Petitioner share a common mother, who abandoned Ms. Lancaster and her two brothers when she was an infant. Petitioner's mother put her three children in" }, { "docid": "22252475", "title": "", "text": "base its decision on a comparison of the characters of Ms. Allen and petitioner, thereby rendering his death sentence unconstitutional because it was based on arbitrary factors. Because we hold, in Part IV, supra, that the trial court’s instruction to the jury at the sentencing hearing was constitutionally defective and that petitioner’s death sentence must be set aside, we need not address the merits of petitioner’s alternate argument. The State may wish to pursue the death penalty, however, thus requiring a new sentencing hearing before a jury, and we therefore feel obligated to comment briefly on one aspect of Mr. Allen’s testimony. The State called Mr. Allen in rebuttal as a “witness to show aggravating circumstances”; he was the last witness to testify at the sentencing hearing. Mr. Allen testified, over the defense’s objection, that at the time of her death, Ms. Allen was almost nineteen years old, had been an honor student in high school, was attending Middle Georgia College on a partial scholarship, had been working part time at the Majik Market to help pay for her education, and desired to become a nurse. On direct appeal, petitioner challenged the admissibility of Mr. Allen’s testimony. The Supreme Court of Georgia found that his testimony was admissible to rebut an inference that could have been drawn from evidence presented during the guilt phase of the trial that Ms. Allen had participated in the robbery; during the guilt phase of the trial, the defense elicited testimony from Joyce Brown, the assistant manager of the Majik Market, who said that when she arrived at the Majik Market shortly after Ms. Allen was abducted, she discovered the safe unlocked and undamaged. According to the Supreme Court of Georgia, Ms. Allen’s participation in the robbery would have constituted a mitigating factor that the State was entitled to rebut. In this appeal, the State has also raised an alternative justification, not considered by the Supreme Court of Georgia, for the admissibility of Mr. Allen’s testimony. The State now argues that it was seeking to prove the statutory aggravating circumstance that the crimes charged (rape" }, { "docid": "22103374", "title": "", "text": "Justice White announced the judgment of the Court, and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join. In this case, we are called on to determine if the Eighth Amendment required a Texas trial court to give certain jury instructions, relating to the consideration of mitigating evidence, that petitioner had requested in the sentencing phase of his capital trial. I Around midnight on July 25, 1975, someone attacked Mary Margaret Moran, a nurse at a Veterans’ Administration hospital in San Antonio, Texas, in the hospital parking lot as she left work. Five days later, Ms. Moran was found, naked, lying in a field in the midday Texas sun. She had been stabbed seven times; Ms. Moran was also robbed, and possibly sexually assaulted. Still alive when she was discovered, Ms. Moran was taken to a local hospital, where she died the following day. Suspicion had focused on petitioner within hours of Ms. Moran’s abduction, and he was arrested the following morning at his house, where police found a wide array of physical evidence concerning the crime. Petitioner told the officers that he had loaned his car and clothing to a friend the previous evening, and had no explanation for the physical evidence revealed by the search. Petitioner did not take the stand at his trial. His principal defense was that he had been mistakenly identified, and that — even if he was the person who stabbed the victim — her death was the result of incompetent hospital treatment and not the assault. The jury found petitioner guilty of capital murder under Tex. Penal Code Ann. § 19.03 (1974). At the penalty phase of petitioner’s trial, the State called four police officers who testified that petitioner had a bad reputation as a law-abiding citizen. The State also proved that petitioner had a prior conviction for rape, and called a witness who testified that petitioner had raped her the year before this crime was committed. The sole mitigating evidence petitioner presented was the stipulation that petitioner’s disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without" }, { "docid": "21439518", "title": "", "text": "factors unless unanimously found, thereby violating Petitioner’s rights under the Eighth and Fourteenth Amendments. Accordingly, in my view, the Ohio Supreme Court’s decision runs contrary to the U.S. Supreme Court’s clearly established precedent in Mills. Thus, because the trial court gave unconstitutional acquittal-first jury instructions, and because Petitioner’s counsel rendered ineffective assistance at the sentencing phase, I would vacate Petitioner’s sentence and remand for a new sentencing phase trial. . Petitioner also challenges counsel’s effectiveness inasmuch as counsel conceded in his opening statement “there was nothing they could do to reduce the blame for this crime,” counsel failed to object to the prosecutor’s improper arguments, and counsel failed to object to the state’s use of certain victim impact evidence. However, this Court granted Petitioner’s COA on a more limited scope, certifying the question whether counsel performed ineffectively \"by not conducting a sufficient investigation into mitigating factors and not presenting significant evidence during the sentencing phase.” (Order at 2 (Aug. 10, 2005)) Accordingly, claims of ineffective assistance on these alternative bases are not before this Court. See Bugh v. Mitchell, 329 F.3d 496, 502 n. 1 (6th Cir.2003) (citing Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir.2001)). . As the majority acknowledges, Ms. Wolpert, who is eleven years older than Petitioner, moved away from home when Petitioner was merely five years old. Until Petitioner's late teens, when he lived with Ms. Wolpert for a few years, Petitioner had little contact with Ms. Wolpert. As a result, almost the entire body of Ms. Wolpert's testimony came not from first-hand knowledge of Petitioner’s life and activities, but from stories relayed to her by their mother. Ms. Hartman lived with and cared for Petitioner for a similarly brief period of time (three and one-half years). . Exhibit U was a chart prepared by Petitioner’s counsel setting forth mitigating factors that initially included the step-father’s abusiveness and genetic alcoholism. In response te» Respondent's objection to the exhibit's admissibility, the trial judge required Petitioner to redact references to both the physical abuse and alcoholism. . Notably, when asked about Petitioner’s drinking, Ms. Wolpert responded, “He" }, { "docid": "23223055", "title": "", "text": "court’s finding of aggravating circumstances.” Lewis, 497 U.S. at 782, 110 S.Ct. at 3103. “Like findings of fact, state court findings of aggravating circumstances often require a sentencer to ‘resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). The federal district court reviewed the trial transcripts and exhibits and concluded that a rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. The court stated: After beating Ms. Hawley, Petitioner “decided that he needed to get rid of her”... “to try to dispose of any future testimony or evidence.” (TR 1091-92) Further, Petitioner told the investigating police officers that he and Cannon discussed Cannon’s desire to kill Ms. Hawley because she had seen their faces and they could be identified from police lineups.... [¶] It is quite logical to assume that the jury concluded from the evidence that Ms. Hawley was kidnapped from her home and driven, in her stolen car, to a remote location so that she could be murdered before she identified Petitioner and Cannon as the men who burglarized her home and stole her car. We agree with the district court’s assessment of the evidence. 3. Was Trial Counsel Ineffective for Failing to Explain That Mr. La-Fevers’ Nolo Contendere Plea Could be Used Against Him in the Penalty Phase of the Second Trial? Mr. LaFevers posits that at the time he made his nolo contendere pleas to the Paden/Austin crimes, he was told by his attorney the plea could never be used against him as an admission of guilt. Specifically, he argues his trial counsel was ineffective for failing to explain that his nolo contendere plea could be used against him in the penalty phase of the second trial. To succeed on this issue, however, petitioner must demonstrate that his lawyer’s deficient performance prejudiced his defense. To make out prejudice, he must demonstrate there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been" }, { "docid": "15269828", "title": "", "text": "cannot be attributed to that counsel. Furthermore, even if Petitioner could show some deficiency in his trial counsel’s performance at the guilt phase, he has failed to demonstrate that he was prejudiced by his counsel’s failed attempts to secure a defense expert. See Part A.2., supra. 2. Penalty Phase of Petitioner’s Trial Petitioner claims that although his trial counsel had several months to prepare for the penalty phase of his trial, they spent less than two full business days preparing, waiting until after the conclusion of the guilt phase to do so. Incredibly, counsel’s mitigation testimony consisted of only one witness — Dr. Schmidtgoessling. By calling Dr. Schmidtgoessling to testify, counsel permitted the jury to again hear testimony regarding Petitioner’s capacity to form the intent and purpose to commit aggravated murder. Dr. Schmidtgoessling agreed with the prosecutor’s suggestion that “it is a good thing that [Petitioner] is not bigger, stronger, heavier and smarter, or he would be just that much more dangerous.” The record reflects that numerous family members and other individuals from Petitioner’s past were willing to testify on his behalf at the sentencing phase; however, defense counsel did not interview any of Petitioner’s family members or friends. Counsel failed to investigate, research, or collect pertinent records regarding Petitioner’s background or history for mitigation purposes, and made no attempt to locate significant persons from Petitioner’s past who may have provided valuable testimony regarding mitigating factors. Although Dr. Schmidtgoessling made vague references to Petitioner’s family history and background, she was not able to fully describe to the jury the extent of Petitioner’s background, history, and character for mitigation purposes, because, as she herself mentioned, she did not have time to interview his relatives. We have no doubt that this performance fell below objectively reasonable standards of professional conduct. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Ohio law provides that in a capital sentencing proceeding, the jury shall weigh against the aggravating circumstances “the nature and circumstances of the offense, the history, character, and background of the offender” as well as “[w]hether, at the time of committing the offense," }, { "docid": "12139696", "title": "", "text": "as well, as we shall discuss in part III. . The State did introduce a copy of a judgment of conviction indicating Petitioner's prior conviction of the crime of armed robbery. . During the course of the state postconviction hearing, defense counsel testified that he had discussed with Petitioner the possibility of “putting on the one witness who was related to one of the victims.” At the same hearing, co-counsel testified: \"I believe that this particular witness, who was a sister of one of the victims, ... certainly didn’t want him to get the death penalty.” From this testimony, we assume the representation that \"relatives\" would be called was an inaccurate representation and that only one person was available as a witness. . Petitioner suggests that because this witness testified in the first phase, she must have known him well enough to testify to mitigating circumstances beyond her personal desires. While the record indicates Ms. Lovejoy’s sister, Mary Bridget. Davis, testified in the first phase as a defense witness, she was not identified as the witness defense counsel had planned to call in the second phase. Moreover, the only testimony the state judge precluded was that of an unidentified relative who was not permitted to testify that the death penalty should not be invoked. That witness was not otherwise prevented by the court’s ruling from testifying to any other mitigating circumstances. Petitioner’s argument is thus rendered conjectural. . Petitioner also argues that proscription of the opinion evidence was in violation of Okla.Stat. Ann. tit. 21, § 701.10; hence he was denied due process. Oklahoma has interpreted the statute to apply only to relevant evidence. Chaney v. State, 612 P.2d 269 (Okla.Cr.1980). Since Petitioner’s basic premise is invalid, we will not give further consideration to the argument. . Petitioner suggests this answer indicates the possibility officers prompted Ms. Henderson's recall. We do not agree. Taking the statement in context, we conclude it was an inarticulate reference to instructions given by the interrogator to recall her observations. . The state judge found that (1) there was a written record of the \"substance”" }, { "docid": "21570390", "title": "", "text": "of habeas counsel. Wade v. Vasquez, No. 90-56332, unpublished memorandum disposition (9th Cir. April 21, 1992). After conducting a two-day hearing, the district court held that there was no conflict of interest and denied the claim. Wade v. Vasquez, No. CV 89-0173-R, unpublished memorandum disposition (C.D.Cal. Dee. 14, 1992). This appeal followed. Ill GUILT PHASE CONTENTIONS Wade contends that trial counsel provided ineffective assistance in violation of the Sixth Amendment during several portions of the guilt phase. We reject this contention. In order to demonstrate that his counsel was ineffective, Wade must show that counsel’s performance fell below that of a reasonable attorney and that counsel’s errors created a reasonable probability that, but for the errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. Furthermore: Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Id. at 690-91, 104 S.Ct. at 2066. Wade’s first contention, and the one that is most troubling concerning counsel’s guilt phase performance, is that counsel did not adequately investigate and prepare before the start of trial. Wade further argues that counsel had no theory of the defense at the time the trial commenced. As evidence of his counsel’s lack of preparation, Wade points to the fact that his counsel, who took over the case from prior counsel, billed only twelve and one-half hours prior to the start of trial. Moreover, Wade contends that had counsel been prepared, he would have presented a “battered child syndrome” defense as recognized in People v. Steger, 16 Cal.3d 539, 128 Cal.Rptr. 161, 167, 546 P.2d 665, 671 (1976). Trial counsel, however, testified at the evi-dentiary hearing in the district court that he did not bill" } ]

[ { "docid": "11340145", "title": "", "text": "the statute as written and to allow Congress, should it choose, to add additional conditions for the confirmation of Chapter 13 plans. B Our rejection of an implied per se substantial repayment requirement in § 1325(a)(3) should not suggest any endorsement of minimal or no repayment plans. Congress never intended, of course, that Chapter 13 serve as a haven for debtors who wish to receive a discharge of unsecured debts without making an honest effort to pay those debts. While no precise definition can be sculpted to fit the term “good faith” for every Chapter 13 case, we think the generally accepted definition of “good faith” as used in Chapter 11 of the old Bankruptcy Act, 11 U.S.C. § 766(4) (1976) (repealed), provides the general parameters: A comprehensive definition of good faith is not practical. Broadly speaking, the basic inquiry should be whether or not under the circumstances of the case there has been an abuse of the provisions, purpose, or spirit of [the Chapter] in the proposal or plan.... 9 Collier on Bankruptcy 9.20 at 319 (14th ed. 1978), cited in In re Goeb, 675 F.2d 1386, 1390 n. 9; In re Rimgale, 669 F.2d 426, 431 (7th Cir.1981); In re Terry, 630 F.2d 634, 635 n. 3 (8th Cir.1980). As noted, repayment to unsecured creditors, although not a requirement for confirmation of every Chapter 13 plan, was one intended purpose of Chapter 13’s enactment. Failure to provide substantial repayment is certainly evidence that a debtor is attempting to manipulate the statute rather than attempting honestly to repay his debts. But substantiality of proposed repayment is but one factor to be considered in deciding if a plan has been proposed in good faith; a court must make its determination based on all militating factors. Without attempting either to be exhaustive or to establish a criteria “check-list,” these factors might include, depending on the particular case, not only the percentage of proposed repayment, but also the debt- or’s financial situation, the period of time payment will be made, the debtor’s employment history and prospects, the nature and amount of unsecured" } ]

[ { "docid": "20546367", "title": "", "text": "was non-dischargeable, the debtor filed his Chapter 13 case, listing the debt to Pioneer Bank as his only obligation. While observing that the successive filings were not a per se indication of bad faith, the Tenth Circuit ruled that the filing of a “Chapter 20” was a significant factor to be considered. In analyzing this issue, the Tenth Circuit cited with approval the following language from the Fourth Circuit’s decision in Neufeld v. Freeman, 794 F.2d 149 (4th Cir.1986): Resort to the more liberal discharge provisions of Chapter 13, though lawful in itself, may well signal an “abuse of the provisions, purpose, or spirit” of the Act, especially where a major portion of the claims sought to be discharged arises out of the pre-petition fraud or other wrongful conduct and the debtor proposes only minimal repayment of these claims under the plan. Similarly, a Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest the plan nevertheless represents a good faith effort by the debtor to satisfy his creditors’ claims. 794 F.2d at 152-153. Although the Tenth Circuit had no quarrel with the Bankruptcy Court’s finding that the debtor was committing his entire surplus to his plan payments, the $50 per month plan payments resulted in only a 1.5% payment to Pioneer Bank, which, the Tenth Circuit found, was tantamount to a discharge of the debt under Chapter 7. The court concluded that the debtor’s filing was not in good faith, because the Chapter 13 filing was a manipulation of the bankruptcy system in order to discharge a single debt for de minimus payments under a Chapter 13 plan which was ruled not dischargea-ble under an immediately previous Chapter 7 filing, when the debtor could not originally meet the jurisdictional requirements of Chapter 13. 888 F.2d at 706. In this case, the Court finds a similar manipulation of the bankruptcy system. The Debtor was originally ineligible for relief under Chapter 13 because he owed over $500,000 to the IRS alone. However, he negotiated a stipulation which reduced his unsecured debt below the limit" }, { "docid": "15931648", "title": "", "text": "and ultimately to discharge the remainder of the debt under the “super discharge” provisions of 11 U.S.C. § 1328. Bank objects to confirmation of Debtor’s plan on three grounds. First, Bank contends that its claim should be treated as a secured claim. Second, to the extent that the claim is unsecured, Bank contends that the treatment of the claim is less under Debtor’s plan than would be paid under a Chapter 7 case. Third, Bank contends that Debtor’s plan is not made in good faith. Having found the first two grounds meritless, the Court addresses Bank’s third ground. FINDINGS OF FACT and CONCLUSIONS OF LAW Provided that a debtor satisfies the eligibility requirements for relief under Chapter 13, he may submit for confirmation a plan that modifies the rights of holders of secured or unsecured claims and that provides for the payment of all or any part of any allowed claim. 11 U.S.C. § 1322(b). Upon completion of plan payments, “the court shall grant the debtor a discharge of all debts provided for by the plan.” 11 U.S.C. § 1328(a). The exceptions from discharge in Chapter 13 do not include a debt arising from willful and malicious injury to a creditor. See § 1322(b)(5). Thus, notwithstanding § 523(a)(6)’s provision that a discharge “does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity,” the so-called “super discharge” provisions of Chapter 13 allow a debtor to discharge such debts if the plan is confirmed and the debtor successfully completes all payments. Nevertheless, a court may deny confirmation of a Chapter 13 plan which was not proposed in good faith. § 1325(a)(3). In Kitchens v. Georgia Railroad Bank and Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir.1983), the Eleventh Circuit provided guidance for determining a debtor’s good faith within the context of a Chapter 13 plan by listing factors to be considered. The non-exclusive list includes the debtor’s motivations and sincerity in seeking relief, the circumstances under which the debtor contracted with creditors," }, { "docid": "8322426", "title": "", "text": "a month cannot be considered substantial in view of the fact that Debtor and his wife have an excess monthly income of $1,115.35. Despite the fact that Debtor’s wife did not join in his petition, her income is listed in his schedules and his plan states that she will assume full responsibility for a secured auto loan in both names. It appears that Debtor could pay more than $120 a month under a plan without hardship to himself or his family. Creditors have been receiving $30 a week (or approximately $120 a month) by way of a wage attachment. Nothing had been paid before that time. Creditors would receive less under Debtor’s proposed plan than before Debtor filed his petition. These facts contradict an assertion that Debtor is attempting to repay his creditors to the best of his ability. Another factor to be considered in determining whether Debtor’s plan has been proposed in good faith is the duration of the plan. Debtor proposes to make payments for three years. In view of the relatively small percentage of the obligation Debtor proposed to pay Creditors, it does not seem unreasonable that he would have considered a five year plan instead of the proposed three year period. A Debtor’s proposal of payment for less than the maximum period taken alone is not enough to demonstrate a lack of good faith, but in combination with other circumstances may indicate bad faith. In re Chase, supra. Whether a debt is dischargeable in a Chapter 7 proceeding is also a factor in determining good faith. The objecting Creditors are owed a debt arising from an intentional tort. Such a debt is non-dis-chargeable under Chapter 7. 11 U.S.C. § 523(a)(6). Chapter 13 is designed to give debtors an opportunity to make a fresh start and its discharge provisions are much broader than Chapter 7 discharge provisions. Absent other evidence of bad faith, dischargeability is not relevant to a determination of whether a proposed plan is con-firmable under § 1325 because a debt non-dischargeable in a Chapter 7 proceeding under § 523(a)(6) may be discharged under §" }, { "docid": "6623330", "title": "", "text": "was ruled not dischargeable under an immediately previous Chapter 7 filing, when the debtor could not meet the jurisdictional requirements of Chapter 13. Rasmussen, 888 F.2d at 706. The Debtor stresses that the use of serial filings in an attempt to discharge a debt under Chapter 13 that is not dis-chargeable under Chapter 7 is not, by itself, conclusive evidence of bad faith. We agree. However, in this case, as in Rasmussen, the record reflects that more factors than merely the fact of successive filings are involved. In the prior case, the Debtor was unable to meet the jurisdictional limits of a Chapter 13 proceeding because his unsecured debts totaled more than $250,000, in contravention of § 109(e). The Debtor proceeded to discharge all his unsecured debts, except that of American Jawa, through his Chapter 7 proceedings. During the course of that proceeding, the bankruptcy court disallowed discharge of his debts to American Jawa and the Bank, pursuant to § 523(a)(4) and (6), because he sold inventory out of trust and failed to account for the proceeds. Six months after receiving his discharge in the Chapter 7 proceedings, the Debtor initiated a proceeding under Chapter 13, listing the debts surviving the Chapter 7 as his only obligations and his debt to American Jawa as his only unsecured debt. His Plan proposed to pay $775.00 per month for 60 months — a payback to American Jawa of 0.4% of its unsecured claim, because he was paying the priority tax claims of the IRS and the Oklahoma Tax Commission that were not discharged in his prior Chapter 7. The Debtor further proposed to surrender to the Bank non-exempt property that remained an asset of his Chapter 7 estate. Rather than a good faith effort to repay this debt, we see a manipulation of the system by a debtor who defaulted on obligations grounded in dishonesty, and who subsequently sought to avoid these nondischargeable debts at minimal cost. After reviewing the entire record and the bankruptcy court’s findings, we cannot say that the court was clearly erroneous in finding the Debtor filed his" }, { "docid": "18726987", "title": "", "text": "intended under the Code is manifest from the terminology in Chapter 13. The confirmation standard in Code § 1325(a)(4) refers to “property to be distributed under the plan”; Code § 1326 directs that administration expenses must be paid before or at the time “of each payment to creditors under the plan”; Code § 1328(a) grants a broad discharge to the debtor “after completion by the debtor of all payments under the plan”; Code § 1328(b) grants a hardship discharge to the debtor under certain conditions if “the debtor has not completed payments under the plan”, but restores to nondischargeable status those nondischargeable debts under Code § 523(a) that would otherwise have been discharged if all payments were completed under the plan; and Code § 1329 permits modification of a Chapter 13 plan after confirmation “but before the completion of payments under a plan.” A debtor who does not propose to make any payments to unsecured creditors, and whose unsecured creditors would receive nothing if a petition were filed under Chapter 7, is not given the alternative of avoiding the consequences of nondischargeability of debts under Code § 523 by simply filing a petition for relief under Chapter 13. A disguised Chapter 7 liquidation under Chapter 13 would subvert the purpose of Chapter 13 which was expressed in the House Report No. 95-595, 95th Cong., 1st Sess. (1977) 118, U.S.Code Cong. & Admin. News 1978, p. 6079: “The purpose of Chapter 13 is to enable an individual, under court supervision and protection, to develop and perform under a plan for the repayment of his debts over an extended period.” The privilege of obtaining the benefit of the broad dischargeability provisions under Code § 1328(a) is conditioned on, and the encouragement for, debt repayment under a plan. The failure to complete the required payments then triggers the hardship discharge relief under Code § 1328(b), where the concept of dischargeability is more restricted. To accept the debtor’s reasoning that a debtor who proposes nothing to unsecured creditors because they would receive nothing under Chapter 7 is therefore entitled to the benefit of the" }, { "docid": "18726984", "title": "", "text": "DECISION ON OBJECTION TO CONFIRMATION OF PLAN AND DISCHARGE OF DEBTOR. HOWARD SCHWARTZBERG, Bankruptcy Judge. This is another in the stream of cases under Chapter 13 where the debtor’s plan offers nothing to unsecured creditors and simultaneously seeks the blessings under Code § 1328 in order to discharge obligations that would otherwise be nondischargeable in a straight liquidation case under Chapter 7. Confirmation is sought as a result of literal compliance with the distribution requirement in Code § 1325(a)(4) that the creditors will receive “not less than” the amount that would be paid if the estate were liquidated under Chapter 7. The standing Chapter 13 trustee and an unsecured creditor have objected to confirmation on the ground that a zero plan designed to discharge an otherwise nondis-chargeable debt must be regarded as lacking the good faith required under Code § 1325(aX3). The debtor filed her petition under Chapter 13 of the Bankruptcy Reform Act of 1978 on April 28,1980; listing six unsecured creditors totalling $2,447.77, a secured automobile loan for $340. and a contingent liability for an alleged intentional tort arising out of a pending legal action. The petition reveals that the debtor has regular income as a waitress in the approximate amount of $574.00 per month, with monthly expenses of $526.00. She is also entitled to receive alimony and child support from her husband under a separation agreement, although it is asserted that she has not been able to enforce these obligations. All of her assets are exempt. Thus, unsecured creditors would receive nothing if this were a straight liquidation case under Chapter 7. The debtor’s plan calls for payment of the secured debt and no payment to the unsecured creditors. The debtor reasons that it would be the rankest sort of discrimination against the poor to hold that their inability to make payments to unsecured creditors makes them ineligible for the benefits of the dischargeability provisions under Chapter 13. If she were required to file a straight bankruptcy petition she contends that she would be left with a potentially substantial undischarged obligation which would impair the possibility of" }, { "docid": "19035834", "title": "", "text": "13 discharge within 6 years unless payments under that Chapter 13 totaled 100% of allowed unsecured claims or 70% of such claims and the plan was the debtors best effort and was proposed in good faith § 727(a)(9). To show the absurdity of the results which will obtain if the debtors contention that I must confirm this plan is adhered to, an example is in order. Suppose the debtor proposes a plan for a 1% dividend were confirmed. Upon completion of the payments, which amounts to $52.95 in this case, a discharge of all debts except alimony, child support and certain long term debts, will be granted. Now suppose another debtor who desires to deal in good faith with his creditors, proposes and has confirmed its plan calling for a 70% dividend to unsecured creditors. When the debtor has paid 50% of its unsecured claims, financial difficulties are encountered and a request is made for a § 1328(b) type discharge. If granted, that debtor is subject to all claims of creditors who allege their debts to be non-dischargea-ble. If a debtor obtains a discharge under Chapter 7 Liquidation, he cannot again obtain a Chapter 7 discharge for 6 years. Of course by filing a Chapter 7, a debtor proposes only to pay his unsecured creditors such sums as are generated by liquidating nonexempt assets which generally are not present making for little, if any, distribution to unsecured creditors. But if the debtor files a Chapter 13 calling for payment of a nominal amount to unsecured creditors which amount is at least what the creditor would receive on liquidation, there seems to be no limitation on the number of times such a debtor may obtain a discharge. I wonder what the difference is between a Chapter 7 and a 1% Chapter 13 plan. I would submit none. As Judge Hughes pointed out in In re Paul Eugene Burrell, op. cit., the embezzler proposing and consummating a Chapter 13 plan obtains a discharge of that debt while if that same person seeks relief under Chapter 7, he remains liable on that debt." }, { "docid": "12921631", "title": "", "text": "of the Creditors’ claims, the relatively modest proposed plan payments, and the high percentage of not insubstantial assets that Debtor has claimed as exempt. Further, under a Chapter 7 liquidation the Creditors’ claims, if proven, could be nondischargeable, for example, under 11 U.S.C. § 523(a)(6) as debts for wilful and malicious injury by the Debtor. However, under Chapter 13’s broader discharge, there is no exception from discharge for intentional torts of the type alleged by the Creditors. 11 U.S.C. § 1328(a). See 2 Lundin, Chapter 13 Bankruptcy § 9.10 (1992). The apparent irony is that the broader discharge offered by Chapter 13 was one of several incentives adopted by Congress to induce individual creditors to elect a Chapter 13 payment plan, rather than a Chapter 7 liquidation, in order to increase payments to creditors. For example, in Chapter 13 there is a codebtor stay as to consumer debts; the debtor remains in possession of all property of the bankruptcy estate; and creditor approval of debtor’s plan is not required. 11 U.S.C. §§ 1301(a), 1306(b), 1325. See In re Rimgale, 669 F.2d 426, 427-428 (7th Cir.1982). A. Debtor’s Eligibility for Chapter 13 Relief. Only an individual with less than $100,000.00 of noncontingent and liquidated unsecured debt is eligible to file a Chapter 13 ease. As applicable here, Section 109(e) of the Bankruptcy Code provides: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 ... may be a debtor under Chapter 13 of this title. 11 U.S.C. § 109(e). The Creditors first argue that Debtor is ineligible because he said he does not owe any debts when he scheduled the amount of the Creditors’ claims as zero. This contention is without substance. The Creditors had pending tort lawsuits against Debtor that claimed some $160,000,000.00 in damages. The lawsuits were disclosed by Debtor and scheduled as disputed, unliquidated and contingent. A debt is defined as liability on a claim, and claim is broadly defined to include rights to payment that are disputed, unliqui-dated or contingent. 11" }, { "docid": "13928207", "title": "", "text": "debtor is permitted to discharge a guaranteed student loan while maintaining a comfortable middle class lifestyle without making substantial efforts to repay unsecured debts); and (4) the expected duration of the plan, In re Todd, 65 B.R. 249, 252 (Bankr. N.D. Ill.1986) (where “a Chapter 13 plan involves a debt which potentially would be nondis-chargeable in a Chapter 7, courts have found that to be adequate cause to extend plans beyond three years.”). The Creditor asserts that the Debtors did not file their plan in good faith because this particular debt enabled the Debtors to attain their current standard of living and, as an educational debt, it is nondischargeable in a Chapter 7. As noted above, some bankruptcy courts consider the nature and dischargeability of a debt in making good faith determinations. See, e.g., Williams, 42 B.R. at 476; Nkanang, 44 B.R. at 958. However, nondischarge-ability alone is not determinative of bad faith. In re Gregory, 705 F.2d 1118, 1121 n. 4 (9th Cir.1983). Additionally, it is important to note that Congress intended student loans to be dischargeable under Chapter 13 even though they are not dischargea-ble in a Chapter 7. See, 11 U.S.C. § 523(a)(8) and 1328(a); In re Klein, 57 B.R. 818, 820 (9th Cir. BAP 1985); In re Lee, 71 B.R. 833 (Bankr.N.D.Ga.1987). In this case, the Debtors have dedicated all disposable income to the plan and do not enjoy an exorbitant standard of living. Accordingly, inclusion of this debt in the plan is not necessarily evidence of bad faith. Next, the Creditor argues that the amount of the payments the Debtors propose to make under their plan is indicative of bad faith. In support of its position, the Creditor argues that although the Debtors' plan proposes to pay 45-50% of their student loans, the Debtors have not considered any lifestyle changes that would increase their income and enable them to make larger contributions to the plan. The Creditor argues that the Debtors’ failure to provide for greater payment renders the proposed payment nominal. Section 1325(a)’s good faith requirement is supplemented by section 1325(b) which provides that" }, { "docid": "18023648", "title": "", "text": "the Debtors’ bankruptcy attorney’s fees. Congress did not create Chapter 13 as a vehicle solely for the payment of attorney’s fees. The debt at issue would be nondis-ehargeable in a Chapter 7 pursuant to section 523(a)(6), which excepts from discharge any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). It is clear to the Court that the Debtors filed for Chapter 13 solely to gain the superdischarge to discharge a debt that would remain nondischargeable in Chapter 7. There are no secured creditors, and the Debtors are current on their mortgage, car loan and tax obligations. There is only some credit card debt and an unsecured loan from William Dicey’s mother. No evidence was presented that creditors were at the Debtors’ “gates” demanding payment of their debts. In fact, it appears that the Debtors were current on all their obligations and only sought the protection of bankruptcy following the $40,000.00 judgment in state court, a debt that the Debtors did not even attempt to pay before they filed their petition a mere two weeks following the judgment. “The bottom line is whether the debtor is attempting to thwart his creditors, or is making an honest effort to repay them to the best of his ability.” Virden, 279 B.R. at 409. There is little doubt that the Debtors are attempting to manipulate the Bankruptcy Code to “thwart” this one Creditor. IV. CONCLUSION The Debtors have not met their burden of demonstrating that their Chapter 13 plan was filed in good faith, and accordingly, confirmation is denied. The de minimis dividend, the fact that the debt would be nondischargeable under a Chapter 7, the fact that the case is in substance a one creditor case, the fact that no prepetition creditors are receiving any substantial payment, the fact that the only distributions will be to administrative creditors and the timing of the bankruptcy filing, all lead to the conclusion that the plan was not filed in good faith. This opinion constitutes the Court’s findings of fact and" }, { "docid": "18726986", "title": "", "text": "her ever achieving financial stability, although the debt may not be collectible. This argument elides the point that to be eligible for relief under Chapter 13 a debtor must be “an individual with regular income.” See 11 U.S.C. § 109(e). An “individual with regular income” is defined in 11 U.S.C. § 101(24) to mean an “individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under Chapter 13 of this title . . ”. [Emphasis added] Thus, payments must be made as a prerequisite for relief. Secured creditors may look to the value of their collateral for the payment available to them whether the debtor chooses to file under either Chapter 7 or Chapter 13. Therefore the payments required under Chapter 13 must be made to unsecured creditors consistent with the Congressional intent that Chapter 13 was designed to encourage more debtors to repay their debts over an extended period rather than opt for straight bankruptcy liquidation and discharge. That zero plans for unsecured creditors were not intended under the Code is manifest from the terminology in Chapter 13. The confirmation standard in Code § 1325(a)(4) refers to “property to be distributed under the plan”; Code § 1326 directs that administration expenses must be paid before or at the time “of each payment to creditors under the plan”; Code § 1328(a) grants a broad discharge to the debtor “after completion by the debtor of all payments under the plan”; Code § 1328(b) grants a hardship discharge to the debtor under certain conditions if “the debtor has not completed payments under the plan”, but restores to nondischargeable status those nondischargeable debts under Code § 523(a) that would otherwise have been discharged if all payments were completed under the plan; and Code § 1329 permits modification of a Chapter 13 plan after confirmation “but before the completion of payments under a plan.” A debtor who does not propose to make any payments to unsecured creditors, and whose unsecured creditors would receive nothing if a petition were filed under Chapter 7, is not given the" }, { "docid": "10174024", "title": "", "text": "owed to the Chicago Patrolman’s Federal Credit Union which debt was to be paid 100% as a special class to protect co-signer. On July 17, 1986, Todd submitted an amended plan after the standing trustee apparently had argued that he could afford a larger payment. Under the terms of the amended plan all unsecured creditors, except for Weeks and the Chicago Patrolman’s Federal Credit Union, were to receive 10% of the value of their claims. The plan was to run 40 months with monthly plan payments of $366.00. Under this amended plan, Todd proposed to pay 26% of Weeks’ claim as a special class. Weeks objects to confirmation of the amended plan alleging that the plan was filed in bad faith. Weeks asserts that because his claim is based on Todd’s “reprehensible and flagrant” acts which lead to judgment, Todd should not be able to use the provisions of the Bankruptcy Code to avoid full compensation. Short of full compensation, however, Weeks asks that Todd’s plan be extended to 60 months, which Weeks asserts will result in payment of approximately 39% of his claim. DISCUSSION Had Todd filed a Chapter 7 petition in bankruptcy, 11 U.S.C. § 523(a)(6) would have been applicable. Under that provision, an individual debtor may not be discharged for “willful and malicious injury by the debtor to another entity or to the property of another entity.” Thus, the instant judgment debt arising from a § 1983 violation for the acts alleged would likely have been held nondischargeable under Chapter 7 of the Bankruptcy Code. A Chapter 13 discharge, however, is broader than a Chapter 7 discharge. It discharges all debts except those for child support, alimony, and certain long term debts where the last payment is due after completion of the plan. 11 U.S.C. § 1328(a). But to benefit from these liberal discharge provisions, the debtor must comply with 11 U.S.C. § 1325(a)(3) which requires that the plan be proposed in good faith and not by any means forbidden by law. The good faith requirement “has long been the policing mechanism of bankruptcy courts to assure" }, { "docid": "3025168", "title": "", "text": "time and thereafter maintaining regular payments. While such plan treatment may result in the debtor emerging from his Chapter 13 plan with a continuing obligation which may impede the debtor’s fresh financial start,, such an imposition may be the result envisioned by Congress in amending § 1328(a)(2) to make student loans nondis-chargeable in a Chapter 13 case unless the debtor can demonstrate the debt should be dischargeable under either provision of § 523(a)(8). Absent a showing that discriminatory treatment is necessary for the debtor to complete his Chapter 13 plan, separate classification of student loan and general unsecured obligations cannot be permitted under the Bankruptcy Code. The district court added, “In the instant cases, the proposed plans’ considerable preferential treatment of non-dischargeable student loans over other unsecured claims— 100% versus, at best, 40% — more than overbalances the debtors’ desire for a clean slate as against fairness to their general unsecured creditors.” See also In re Keel, 143 B.R. 915, 917 (Bankr.D.Neb.1992) (“a debtor should never be permitted to accelerate payments on the student loan to the detriment of unsecured creditors”); In re Saulter, 133 B.R. 148 (Bankr.W.D.Mo.1991); In re Tucker, 130 B.R. 71, 73 (Bankr.S.D.Iowa 1991); In re Scheiber, 129 B.R. at 606-07. Davis further argues that the bankruptcy court has reached an impractical result because she can now file a Chapter 7 plan and liquidate her dischargeable unsecured claims, followed by a Chapter 13 petition to deal with her remaining unsecured creditors, the non-dischargeable student loans. The district court properly answered this argument — “it is irrelevant whether or not there exists an undesirable end-run” around an otherwise correct ruling. Moreover, while the “serial filing” of Chapter 7 and Chapter 13 petitions is not categorically prohibited, there are many Bankruptcy Code provisions designed to prevent debtors from abusing the Code’s equitable remedies. See Johnson v. Home State Bank, 501 U.S. 78, 87-88, 111 S.Ct. 2150, 2156, 115 L.Ed.2d 66 (1991); Fonder v. United States, 974 F.2d 996 (8th Cir.1992). Debtors should not assume that the classification restrictions of § 1322(b)(1) could be evaded in this manner. For the" }, { "docid": "23639891", "title": "", "text": "“with other applicable provisions of this title . . . Section 1325(a)(1); that another section of the title excepts willful tort debts from discharge, Section 523(a); and that the plan which attempts to discharge such a debt does not comply with an “applicable provision” of the title. Section 523(a), by its terms, responds to this attack. It provides, in the portions relevant here: A discharge under section 1328(b) of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity . Section 1328(b) applies where a debtor has not completed the payments under his plan. In that circumstance, the exceptions to a Chapter 7 discharge are applicable in a Chapter 13 case. Section 1328(c)(2). Conversely, where a debtor completes his plan, a subsection (a) discharge (§ 1328(a)) is not excluded by Section 523(a) and we must conclude that the exceptions to discharge recited there are not applicable. It is possible and perhaps even likely that the debtor may want to pay his nondis-chargeable debts under the protection of Chapter 13. If he succeeds, he will be discharged. Section 1328(a). If he does not succeed, the Section 523(a) debts will be excepted from the discharge. Section 1328(c)(2). Thus, it is no violation of any provision of the Bankruptcy Code that an otherwise nondischargeable debt will be discharged in Chapter 13, it is a fulfillment of the Code. 5 Collier on Bankruptcy, ¶ 1328.-01(1)(e)(2), p. 1328-4 (15th ed. 1979); J. Lee, Chapter 13 nee Chapter XIII, 53 Am.Bankr. L.J. 303, 323. Next, it is contended that the unsecured tort creditor will get less in the Chapter 13 case than he would in a Chapter 7 liquidation since, in the latter instance, the debt survives. The Chapter 13 plan provides no payment to this creditor but in a liquidation there would appear to be no assets available for distribution to this creditor either. The test embodied in Section 1325(a)(4), commonly called the “best interest of creditors” test, is usually discussed in terms of what" }, { "docid": "8322427", "title": "", "text": "percentage of the obligation Debtor proposed to pay Creditors, it does not seem unreasonable that he would have considered a five year plan instead of the proposed three year period. A Debtor’s proposal of payment for less than the maximum period taken alone is not enough to demonstrate a lack of good faith, but in combination with other circumstances may indicate bad faith. In re Chase, supra. Whether a debt is dischargeable in a Chapter 7 proceeding is also a factor in determining good faith. The objecting Creditors are owed a debt arising from an intentional tort. Such a debt is non-dis-chargeable under Chapter 7. 11 U.S.C. § 523(a)(6). Chapter 13 is designed to give debtors an opportunity to make a fresh start and its discharge provisions are much broader than Chapter 7 discharge provisions. Absent other evidence of bad faith, dischargeability is not relevant to a determination of whether a proposed plan is con-firmable under § 1325 because a debt non-dischargeable in a Chapter 7 proceeding under § 523(a)(6) may be discharged under § 1328(a) after completion of payments under a plan. However, Congress never intended Chapter 13 to serve as a means of avoiding liability by way of a discharge absent an honest effort to repay obligations. Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982). Debtor and his wife made a mortgage application and were turned down apparently because of the wage attachment. Thereafter, Debtor filed his Chapter 13 petition listing creditors Browning and Yanier as the only creditors, secured or unsecured, to receive payments under the plan. Debt- or has no assets, yet his wife has approximately $13,000 in a bank account in her name only. Debtor’s wife is also the sole owner of the property on which the couple’s trailer is located. Debtor’s primary purpose for filing a Chapter 13 petition is to obtain a discharge of an otherwise non-dischargea-ble debt through a nominal payment plan which does not indicate a sincere desire to repay creditors to the best of his ability. This equates to a lack of good faith and confirmation of Debtor’s proposed plan" }, { "docid": "18726988", "title": "", "text": "alternative of avoiding the consequences of nondischargeability of debts under Code § 523 by simply filing a petition for relief under Chapter 13. A disguised Chapter 7 liquidation under Chapter 13 would subvert the purpose of Chapter 13 which was expressed in the House Report No. 95-595, 95th Cong., 1st Sess. (1977) 118, U.S.Code Cong. & Admin. News 1978, p. 6079: “The purpose of Chapter 13 is to enable an individual, under court supervision and protection, to develop and perform under a plan for the repayment of his debts over an extended period.” The privilege of obtaining the benefit of the broad dischargeability provisions under Code § 1328(a) is conditioned on, and the encouragement for, debt repayment under a plan. The failure to complete the required payments then triggers the hardship discharge relief under Code § 1328(b), where the concept of dischargeability is more restricted. To accept the debtor’s reasoning that a debtor who proposes nothing to unsecured creditors because they would receive nothing under Chapter 7 is therefore entitled to the benefit of the broad discharge under Code § 1328(a) would undermine the basic purpose for Chapter 13, which is to encourage individuals with regular income to repay their debts. The debt- or’s reasoning would produce the absurd result of penalizing a debtor who offers to make payments to unsecured creditors, and does make partial payment, but cannot fully complete them under a plan, by restoring the debtor’s nondischargeable obligations pursuant to a hardship discharge under Code § 1328(b), whereas a debtor who offers and pays nothing may emerge from a Chapter 13 case with a broad discharge under Code § 1328(a). The debtor justifies her position by a literal reading of the words “not less than” in Code § 1325(a)(4) and argues that since her unsecured creditors would receive no distribution under Chapter 7, a zero Chapter 13 plan offers a distribution that is “not less than” what the creditors would receive in the event of a Chapter 7 liquidation. The courts that have rejected this argument have done so on the ground that one of the prerequisites" }, { "docid": "16700032", "title": "", "text": "BOGGS, Circuit Judge. Three unsecured creditors of a debtor in bankruptcy under Chapter 7 of the bankruptcy code obtained a judgment from the bankruptcy court that their debt was non-dischargeable under 11 U.S.C. § 523(a)(6). 60 B.R. 214 (Bkrtcy.E.D.Tenn.1986). Less than two months later (and approximately four months after the debtor’s bankruptcy had been discharged under Chapter 7, subject to the outcome of the dischargeability proceeding under section 523) the debtor moved to reopen his bankruptcy and to convert it to Chapter 13. The bankruptcy court allowed the conversion. In considering whether to approve the debtor’s plan to repay the unsecured creditors (the only creditors affected by the plan), the bankruptcy court extensively analyzed whether the plan met the requirements for confirmation listed in 11 U.S.C. § 1325. Among the requirements particularly discussed were the debtor’s good faith in proposing the plan (1325(a)(3)), whether the unsecured creditors would receive an amount under the plan which is not less than the amount they would receive under a Chapter 7 liquidation (1325(a)(4)), and whether all of the debtor’s “projected disposable income” would be used to make payments under the plan (1325(b)(1)(B)). The bankruptcy court, after making findings of fact and conclusions of law, determined that all of the requirements for confirmation were satisfied and confirmed the plan. 67 B.R. 296. The creditors appealed to the district court. The district court did not conclude that any of the bankruptcy court’s findings of fact were clearly erroneous or that any of the bankruptcy court’s conclusions of law were incorrect. However, the district court expressed its doubt concerning, inter alia, the debtor’s motivation in seeking bankruptcy, the debtor’s good faith in proposing the plan and the propriety of approving a plan which “did not provide for eventual payment of the entire judgment and interest to the date of the chapter 7 filing.” Thus, because of the district court’s “impression that the confirmed plan may constitute an abuse of the provisions and purposes of chapter 13,” it vacated the bankruptcy court’s confirmation of the plan and ordered that the case be remanded to the bankruptcy court" }, { "docid": "8322428", "title": "", "text": "1328(a) after completion of payments under a plan. However, Congress never intended Chapter 13 to serve as a means of avoiding liability by way of a discharge absent an honest effort to repay obligations. Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982). Debtor and his wife made a mortgage application and were turned down apparently because of the wage attachment. Thereafter, Debtor filed his Chapter 13 petition listing creditors Browning and Yanier as the only creditors, secured or unsecured, to receive payments under the plan. Debt- or has no assets, yet his wife has approximately $13,000 in a bank account in her name only. Debtor’s wife is also the sole owner of the property on which the couple’s trailer is located. Debtor’s primary purpose for filing a Chapter 13 petition is to obtain a discharge of an otherwise non-dischargea-ble debt through a nominal payment plan which does not indicate a sincere desire to repay creditors to the best of his ability. This equates to a lack of good faith and confirmation of Debtor’s proposed plan must be denied." }, { "docid": "4771945", "title": "", "text": "Cir.1990) (en banc)); In re Webre, 88 B.R. 242, 245 (9th Cir. BAP 1988). Both prongs are measured by an objective standard which requires the Court to consider the reasonableness of the conduct under the circumstances. Rainbow Magazine, 136 B.R. at 550. a. Improper Purpose The Court determined that Debtor’s Chapter 7 petition was filed in bad faith and for an improper purpose: to avoid payment to his ex-wife of pension benefits awarded to her in a divorce decree. (Conclusion of Law 112). This conclusion is based on evidence that Debtor’s ex-wife was the primary creditor, the filing was prompted by Mrs. Sturgis’ efforts to collect her debt, and Debtor had the ability to pay his debts and fund a Chapter 13 plan. (Findings of Fact Till 3, 19, 20). Debtor argues that he is entitled to discharge his debt to Mrs. Sturgis based on In re Teichman, 774 F.2d 1395 (9th Cir.1985). Teichman held that prepetition payments of retirement benefits divided by a marriage dissolution decree were not excepted from discharge under § 523(a)(4) because the divorce decree did not create a “trust.” Since Teichman provides a legal foundation for discharging the debt to Mrs. Stur-gis, Debtor argues that the petition was filed for the “proper” purpose of discharging a debt. Teichman alone, however, does not justify Debtor’s filing. Other factors figured in this Court’s conclusion that Debtor filed a Chapter 7 petition for an improper purpose. Teichman holds that Mrs. Sturgis’ debt may not be excepted from discharge under § 523(a)(4). Nevertheless such debt may be nondischargeable under § 523(a)(6). In re Wood, 96 B.R. 993 (9th Cir. BAP 1988). The Teichman court did not discuss Mr. Teichman’s debts, assets and ability to pay his creditors. This Debtor, however, has the ability to pay his creditors within a reasonable time, yet chose not to do so. Debtor filed a Chapter 7 petition when he was not really in need of a “fresh start.” Additionally, Debtor failed to disclose assets and transfers of assets, from which the Court infers an improper purpose to mislead the Court, the Trustee and" }, { "docid": "10036114", "title": "", "text": "ALVIN B. RUBIN, Circuit Judge: A debtor who filed a petition for relief under Chapter 13 of the Bankruptcy Code less than one month after receiving a discharge in a previous bankruptcy proceeding conducted under the now-repealed Bankruptcy Act of 1898 seeks discharge of a debt that had been found to be non-dis-chargeable in the prior proceeding. Although no creditors appeared or filed any objections at the confirmation hearing for the debtor’s Chapter 13 plan, the bankruptcy court denied confirmation of the plan on the ground that the debtor’s effort to obtain discharge of the debt showed a lack of the “good faith” required by 11 U.S.C. § 1325(a)(3). The district court affirmed. Relying on the literal provisions of § 1328(a) and finding no affirmative evidence of bad faith, we hold that the prior declaration of non-dischargeability does not per se taint the later application and does not therefore prevent discharge of the debt. I. William G. Chaffin, the debtor, was convicted in March, 1982 of securities fraud and of the theft of $15,000 from Edward N. Newman, Jr., and began serving a prison term for the offense. Chaffin had been in bankruptcy since 1979, when his creditors had filed an involuntary petition under the provisions of the Bankruptcy Act of 1898. Twelve months after his conviction, Chaffin received a discharge in this bankruptcy proceeding. The discharge, however, exempted the $15,000 unsecured debt owed to Newman because, under § 17a(2) of the Bankruptcy Act, debts owed for money obtained by false pretenses or false representations are non-dischargeable. Nineteen days after receiving the discharge, while Chaffin was still serving his unfinished prison term, he filed another petition in bankruptcy. The second petition was under Chapter 13 of the Bankruptcy Code, which had taken effect while the prior proceeding was pending. Chaffin’s Chapter 13 Statement listed his sole income as $50 per month, which he was receiving as a real estate consultant, and $50 per month from other sources. His Chapter 13 plan proposes to pay $10 per month for 36 months, or a total of $360, to the standing trustee. After" } ]

[ { "docid": "9750264", "title": "", "text": "the untenable position of putting on a case without an essential witness (Moffitt herself). To then dismiss the case when her counsel announced that she could not proceed in her client’s absence was an unreasonably harsh measure that effectively penalized Moffitt for a recognized disability. Our review of the district court’s decision not to grant Moffitt a continuance, and to dismiss the case for want of prosecution is, of course, deferential. Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993). We ask not what we ourselves might have done, but whether the district judge abused his discretion in deciding to act as he did. See, e.g., Esposito v. Piatrowski, 223 F.3d 497, 499 (7th Cir.2000) (Rule 41(b) dismissal); United States v. Cruz-Velasco, 224 F.3d 654, 666-67 (7th Cir.2000) (denial of continuance). So long as the district judge’s analysis was not tainted by a legal error or the failure to consider an essential factor, see Kruger v. Apfel, 214 F.3d 784, 786 (7th Cir.2000) (per curiam), we will reverse only if no reasonable person could concur in the district judge’s decision or, put another way, only if the decision strikes us as fundamentally wrong, In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam). Several points deserve making at the outset. First, we agree with Moffitt that there is no real record of delay or contumacious behavior on her part in this case. See, e.g., Kruger, 214 F.3d at 787, quoting Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998). Nor is it a case in which sanctions less severe than dismissal had already proven ineffective as a means of preventing further noncompliance with the court’s orders. See, e.g., 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987); but see also Ball, 2 F.3d at 756 (“[t]he judge is not required to impose graduated sanctions ... before dismissing a case for failure to prosecute”). Nor had the court expressly warned Mof-fitt that it would dismiss the case for want of prosecution if she was not prepared to go forward on" } ]

[ { "docid": "23373488", "title": "", "text": "a single question. We must decide whether to dismiss the case or, in the interest of justice, transfer it to the Federal Circuit. See 28 U.S.C. § 1631; Christianson, 486 U.S. at 818, 108 S.Ct. 2166; Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.1999). ITC urges us to dismiss rather than transfer the case. At this stage of the proceedings, we may “take a peek” at the merits because whether the appeal has any possible merit bears significantly on our decision to transfer or dismiss the appeal. Phillips, 173 F.3d at 610-11. We may do so even though we lack jurisdiction to decide the merits. Phillips, 173 F.3d at 611. B. ITC moved to dismiss the complaint with prejudice “pursuant to Fed. R.Civ.Proc. 37(d) and/or 41(b).” R. 25, at 4. The district judge ultimately dismissed the case for want of prosecution pursuant to Rule 41(b) but she also discussed and may have relied upon Aura Lamp’s violations of orders related to discovery. In an abundance of caution we will therefore address Aura Lamp’s Rule 37 arguments as well. As we concluded above, we may consider the consequences of transfer before deciding whether to transfer. Phillips, 173 F.3d at 611. “[Tjhere is no reason to raise false hopes and waste judicial resources by transferring a case that is clearly doomed[.]” Id. Here, because the case was dismissed for want of prosecution and violations of discovery orders, the district court’s ruling rests on procedural matters not unique to patent law. The ruling would thus be reviewed under the law of our own circuit. Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975 (Fed. Cir.1993). In our Circuit, we review for abuse of discretion the district court’s decision to sanction a plaintiff by dismissing a suit. Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998); Neuman v. Metropolitan Pier & Exposition Auth., 962 F.2d 589, 592 (7th Cir.1992). Our review of a dismissal for want of prosecution is highly deferential. Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993). In order to find an abuse of discretion," }, { "docid": "12645611", "title": "", "text": "documents and things in respondent’s request attached thereto, or show cause at the Trial Session of the Court scheduled to Commence at 10:00 a.m. on May 18, 1981, in Room 8541, Federal Building, 300 North Los Angeles Street, Los Angeles, California 90012, why sanctions should not be imposed. At the calendar call on May 18, 1981, it appeared that petitioners had failed to respond without evasion or ambiquity to highly significant interrogatories and had failed to produce highly significant documents that were the subject of respondent’s request. Mr. McCoy, who appeared on behalf of petitioners, again invoked the Fifth Amendment, insisting upon a grant of immunity of undefined scope. We were thoroughly satisfied that petitioners’ stubbornly asserted position constituted a default. The privilege against self-incrimination may be invoked only when an answer to the question posed would expose the petitioner to a real danger of criminal prosecution; remote or speculative possibilities of prosecution for unspecified crimes are not sufficient to justify a refusal to respond. See, e.g., Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478 (1972); Ryan v. Commissioner, 568 F. 2d 531, 539 (7th Cir. 1977), cert. denied 439 U.S. 820 (1978), affg. 67 T.C. 212, 217 (1976); Burns v. Commissioner, 76 T.C. 706, 707 (1981). In the circumstances of the record before us, petitioners’ conduct calls for the imposition of the most severe sanctions available under our Tax Court Rules of Practice and Procedure, namely, the dismissal of the case for failure properly to prosecute by failing to comply with our Rules and a specific order of the Court; judgment will accordingly be rendered against petitioners. Rules 104(c)(3) and (d), and 123(a) and (b), Tax Court Rules of Practice and Procedure; see Eisele v. Commissioner, 580 F.2d 805 (5th Cir. 1978); Lockwood v. Commissioner, a Memorandum Opinion of this Court, 41 T.C.M. 1511, 1512, 50 P-H Memo T.C. par 81,243, at 813-814 (1981). It may be appropriate to note further that this Court has been flooded with a large number of so-called tax protester cases in which thoroughly meritless issues have been raised in," }, { "docid": "23652611", "title": "", "text": "On August 3, Kruger’s counsel requested an extension of the deadline to September 11, which the magistrate judge granted. Kruger’s counsel failed to file the brief by the new deadline. Instead, on October 13, Kruger’s counsel requested a second, unopposed extension to October 16. She alleged that an increased caseload due to the abrupt departure of a staff person had prevented her from completing the brief any sooner. The magistrate judge denied counsel’s request for a second extension of time, in part because counsel had waited more than a month past the original deadline to request additional time, and recommended to the district judge that the case be dismissed for failure to prosecute. The magistrate judge issued his recommendation and mailed a copy to both parties on October 15. On November 3, Kruger filed his objections to the magistrate judge’s recommendation. Because the objections were not timely, the district court refused to consider them and on November 30, 1998 adopted the magistrate judge’s recommendation without review. On December 14 Kruger filed a notice of appeal and a motion to amend or alter the judgment. In August 1999, the district court denied Kruger’s motion, and this appeal followed. II. DISCUSSION We review dismissal as a sanction for failure to prosecute for an abuse of discretion. Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998). Although abuse of discretion is a deferential standard, it is, nonetheless, a meaningful one. See Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir.1998). We will find an abuse of discretion where the district court commits an error of law, Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir.1999), or fails to consider an essential factor, see Robyns v. Reliance Standard Life Insurance Co., 130 F.3d 1231, 1236 (7th Cir.1997). A. Failure to Review Magistrate’s Recommendation Kruger’s counsel filed objections to the magistrate judge’s recommendation, admitting that she should have requested a second extension of time as soon as she realized she would not meet the deadline, but contending that the sanction of dismissal was too harsh. Despite the fact that in Lerro v." }, { "docid": "9697589", "title": "", "text": "for leave to file motion to vacate under Tax Court Rule 123(c) and 26 U.S.C. § 7481. Bauer’s counsel also filed a notice of appeal of the Tax Court’s December 22, 1994, dismissal order, requesting that it be held in abeyance until the Tax Court ruled on the motion for leave to file motion to vacate. In each motion, Bauer’s counsel asserted that Bauer had been prevented from returning to the United States by “significant health problems” as well as “certain immigration and business problems in Africa.” The Tax Court denied the motion for leave to file the motion to vacate, explaining that its ruling was made after careful consideration of the entire case history from the.filing of Bauer’s petition through the motion currently before the court. The Tax Court also noted that Bauer had neither met with the Commissioner’s counsel as of the trial date nor had made any attempt to contact the Tax Court between September 1992 and March 1995. Bauer appeals the Tax Court’s December 22,1994, decision and order. II. Bauer contends that the Tax Court’s decision and order granting the Commissioner’s motion to dismiss for lack of prosecution violated his due process rights because the Commissioner failed to serve him notice of its intent to move on that motion in violation of Tax Court Rules 50(a) and (f) and Rule 21. The Tax Court’s decision to dismiss a ease for lack of prosecution is not to be overturned, absent an abuse of discretion. Hillig v. Commissioner, 916 F.2d 171, 174 (4th Cir.1990). Although the Tax Court Rules that Bauer cites required the Commissioner to serve Bauer with her motion to dismiss, he ignores the fact that the Tax Court has discretional authority to dismiss any case sua sponte pursuant to Tax Court Rule 123(b), regardless of whether the Commissioner files a motion to dismiss. Thus, Tax Court Rule 123(b) provides: For failure of a petitioner properly to prosecute or to comply with these Rules or any order of the Court or for other cause which the Court deems sufficient, the Court may dismiss a case at" }, { "docid": "23373489", "title": "", "text": "37 arguments as well. As we concluded above, we may consider the consequences of transfer before deciding whether to transfer. Phillips, 173 F.3d at 611. “[Tjhere is no reason to raise false hopes and waste judicial resources by transferring a case that is clearly doomed[.]” Id. Here, because the case was dismissed for want of prosecution and violations of discovery orders, the district court’s ruling rests on procedural matters not unique to patent law. The ruling would thus be reviewed under the law of our own circuit. Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975 (Fed. Cir.1993). In our Circuit, we review for abuse of discretion the district court’s decision to sanction a plaintiff by dismissing a suit. Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998); Neuman v. Metropolitan Pier & Exposition Auth., 962 F.2d 589, 592 (7th Cir.1992). Our review of a dismissal for want of prosecution is highly deferential. Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993). In order to find an abuse of discretion, the district court’s decision must strike us as fundamentally wrong. Williams, 155 F.3d at 857; Ladien v. Astrachan, 128 F.3d 1051, 1056 (7th Cir.1997) (we are obligated to affirm the dismissal unless it is clear that no reasonable person could concur in the trial court’s assessment). Certain principles guide the district court in determining whether to dismiss a case for want of prosecution pursuant to Rule 41. Ideally, the district court should consider the frequency and magnitude of the plaintiffs failure to comply with deadlines for the prosecution of the suit, the apportionment of responsibility for those failures between the plaintiff and his counsel, the effect of those failures on the judge’s calendar and time, the prejudice if any to the defendant caused by the plaintiffs dilatory conduct, the probable merits of the suit, and the consequences of dismissal for the social objectives of the type of litigation that the suit represents. Ball, 2 F.3d at 759-60. “There is no ‘grace period’ before dismissal for failure to prosecute is permissible and no requirement of graduated" }, { "docid": "7841935", "title": "", "text": "and overly technical results that would flow from too strict a reading of Rule 4(a)(2). B. Dismissal of Suits Appellants argue that the district court abused its discretion in dismissing appellants’ claims as a discovery sanction for two reasons. First, appellants claim that their discovery violations were not willful, were not in bad faith, and did not involve fault, and thus dismissal was too severe a sanction under our precedent. Second, appellants argue that they were not adequately warned that their claims would be dismissed, which, they assert, is also required by our precedent. A district court’s entry of sanctions is reviewed for abuse of discretion, while factual findings are reviewed for clear error. In re: Thomas Consolidated Industries, 456 F.3d 719, 724 (7th Cir.2006). The dismissal of a case as a Fed. R.Civ.P. Rule 37 discovery sanction should be upheld as long as a reasonable jurist could have concluded that the sanction was appropriate. Long v. Steepro, 213 F.3d 983, 986 (7th Cir.2000). Given the severity of the sanction, this court has warned that it will be vigilant in its review of Rule 37 dismissals. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir.2003). Despite the fact that the district court dismissed appellants’ claims as a discovery sanction under Rule 37, both parties cite cases discussing dismissals under Fed.R.Civ.P. Rule 41(b)’s failure to prosecute provision. The standards for dismissal under Rules 41(b) and 37(b) overlap, but there are differences between the two. Under Rule 41(b), a case should only be dismissed when “there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Maynard, 332 F.3d at 467 (quoting Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998)). Rule 37, on the other hand, requires a finding of willfulness, bad faith or fault on the part of the defaulting party. Id.; see also Bolanowski v. GMRI, Inc., 178 Fed.Appx. 579, 581 (7th Cir.2006) (“Rule 37(b)(2)’s standard is willfulness, bad faith or fault, while Rule 41(b)’s requires a clear record of delay or contumacious conduct.”). The difference between these" }, { "docid": "6593266", "title": "", "text": "pursuant to Federal Rule of Civil Procedure 41(b) when the documents remained unsigned. We review a district court’s decision to sanction a plaintiff by dismissing her lawsuit under the abuse of discretion standard. Williams v. Chicago Board of Education, 155 F.3d 853, 857 (7th Cir.1998). A court should only dismiss a cause of action pursuant to Rule 41(b) “when there exists a clear record of delay or contumacious conduct or when less drastic sanctions have proven ineffective.” Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1177 (7th Cir.1987). Lewis explains that she refused to comply with the court’s orders because she believed the settlement agreement was “dishonest” and because she wanted to “persuade the court her position was the better one.” Repeated orders directing Lewis to proceed on the basis of a valid settlement should have been sufficient to convince her that her position had not gained any traction with the court. Instead, the court’s orders were consistently met with disregard by the plaintiff, leaving Judge Stiehl with little recourse but to dismiss the lawsuit. We do not render this decision lightly. The settlement agreement that was vacated provided for what on all accounts appeared to be a significant recovery for Lewis; the defendants had even admitted liability on the FMLA claim. However, Lewis’ dogged pursuit of more than she agreed to take under the settlement has left her with nothing in the wake of the district court’s dismissal. Though we think it unfortunate that Lewis’ actions have caused her to lose a substantial settlement, we can find no abuse of discretion on Judge Stiehl’s part. While the power to sanction via dismissal is one which should be exercised with great care, it is “essential” to a court’s ability to efficiently manage its caseload. Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1177-78 (7th Cir.1987). At the time Lewis’ case was dismissed, eight months had passed since the court first directed her to sign settlement documents. She had also been warned that dismissal could result from her continued refusal to comply. When a district court judge is unable" }, { "docid": "9697590", "title": "", "text": "that the Tax Court’s decision and order granting the Commissioner’s motion to dismiss for lack of prosecution violated his due process rights because the Commissioner failed to serve him notice of its intent to move on that motion in violation of Tax Court Rules 50(a) and (f) and Rule 21. The Tax Court’s decision to dismiss a ease for lack of prosecution is not to be overturned, absent an abuse of discretion. Hillig v. Commissioner, 916 F.2d 171, 174 (4th Cir.1990). Although the Tax Court Rules that Bauer cites required the Commissioner to serve Bauer with her motion to dismiss, he ignores the fact that the Tax Court has discretional authority to dismiss any case sua sponte pursuant to Tax Court Rule 123(b), regardless of whether the Commissioner files a motion to dismiss. Thus, Tax Court Rule 123(b) provides: For failure of a petitioner properly to prosecute or to comply with these Rules or any order of the Court or for other cause which the Court deems sufficient, the Court may dismiss a case at any time and enter a decision against the petitioner. The Court may, for similar reasons, decide against any party any issue as to which he has the burden of proof; and such decision shall be treated as a dismissal for purposes of paragraphs (e) and (d) of this Rule. Dismissal for failure to prosecute typically occurs where a party fails to appear at trial. Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.1988). In determining whether to dismiss a ease for failure to prosecute, a court considers the following four factors: (1) the plaintiffs degree of personal responsibility; (2) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; (3) the amount of prejudice caused the defendant; and (4) the effectiveness of sanctions less drastic than dismissal. Hillig, 916 F.2d at 174. In the instant case, Bauer was solely responsible for his attendance at the calendar call. His secretary wrote the Commissioner on August 9, 1994, acknowledging the November 28, 1994, trial date and reporting Bauer’s intention to be present. The" }, { "docid": "22906272", "title": "", "text": "We must first clarify the law of this circuit on the weight of evidence necessary to support dismissal as a discovery sanction. Then, we will consider the appropriateness of the other sanctions ordered by the district judge. A. Of all possible sanctions, dismissal is considered “draconian,” and we must be “vigilant” in our review. Marrocco v. Gen. Motors Corp., 966 F.2d 220, 223-24 (7th Cir.1992). Because of its severity, we have circumscribed the range of cases in which dismissal may be used as a sanction. Looking at the case law, we find two different standards for determining whether a case can properly be dismissed. Some of our cases have held that actions can be dismissed “when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998); Schilling v. Walworth County Park & Planning Com’n, 805 F.2d 272, 278 (7th Cir.1986). This appears to be the standard used when cases are dismissed for want of prosecution or failure to comply with orders of the court, Fed.R.Civ.P. 41(b). A slightly different requirement — a finding of willfulness, bad faith or fault— comes into play when dismissals are used specifically as a discovery sanction under Fed.R.Civ.P. 37. In re Golant, 239 F.3d 931, 936 (7th Cir.2001); Langley v. Union Elec. Co., 107 F.3d 510, 514 (7th Cir.1997); cf. In re Rimsat, Ltd., 212 F.3d 1039, 1046-7 (7th Cir.2000) (requiring a finding of bad faith when a district court dismisses a case under the inherent powers of the court). That is, even without “a clear record of delay, contumacious conduct or pri- or failed sanctions,” a court can apply the sanction of dismissal for Rule 37 violations with a finding of willfulness, bad faith or fault, as long as it first considers and explains why lesser sanctions would be inappropriate. See Long v. Steepro, 213 F.3d 983, 986 (7th Cir.2000); Schilling, 805 F.2d at 278 (“When a clear record of delay, contumacious conduct, or prior failed sanctions does not exist, the exercise of" }, { "docid": "23652612", "title": "", "text": "and a motion to amend or alter the judgment. In August 1999, the district court denied Kruger’s motion, and this appeal followed. II. DISCUSSION We review dismissal as a sanction for failure to prosecute for an abuse of discretion. Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998). Although abuse of discretion is a deferential standard, it is, nonetheless, a meaningful one. See Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir.1998). We will find an abuse of discretion where the district court commits an error of law, Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir.1999), or fails to consider an essential factor, see Robyns v. Reliance Standard Life Insurance Co., 130 F.3d 1231, 1236 (7th Cir.1997). A. Failure to Review Magistrate’s Recommendation Kruger’s counsel filed objections to the magistrate judge’s recommendation, admitting that she should have requested a second extension of time as soon as she realized she would not meet the deadline, but contending that the sanction of dismissal was too harsh. Despite the fact that in Lerro v. Quaker Oats Co., 84 F.3d 239, 241-42 (7th Cir.1996), we clearly set out the method for calculating the date Kruger’s objections to the magistrate judge’s recommendation were due, both parties and the district court failed to use the Lerro method. In this case, the magistrate judge mailed his recommendation to the parties on October 15. Under Rule 72, a party has 10 days after service to file objections. Lerro, 84 F.3d at 241-42. Rule 6(a) excludes Saturdays, Sundays and legal holidays from the 10-day count. Id. at 242. Rule 72 also requires a magistrate judge to serve his recommendations on the parties, and, because in this case the magistrate judge did so by mail, Kruger had an additional three calendar days to file his objections as provided in Rule 6(e). Id. Here, because there were two weekends in the relevant 10-day period, 10 days plus three days turned into 17 calendar days. Id. In addition, because the 17th day fell on a Sunday, Rule 6(a) permitted Kruger to file his objections the next day on" }, { "docid": "7841936", "title": "", "text": "it will be vigilant in its review of Rule 37 dismissals. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir.2003). Despite the fact that the district court dismissed appellants’ claims as a discovery sanction under Rule 37, both parties cite cases discussing dismissals under Fed.R.Civ.P. Rule 41(b)’s failure to prosecute provision. The standards for dismissal under Rules 41(b) and 37(b) overlap, but there are differences between the two. Under Rule 41(b), a case should only be dismissed when “there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Maynard, 332 F.3d at 467 (quoting Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998)). Rule 37, on the other hand, requires a finding of willfulness, bad faith or fault on the part of the defaulting party. Id.; see also Bolanowski v. GMRI, Inc., 178 Fed.Appx. 579, 581 (7th Cir.2006) (“Rule 37(b)(2)’s standard is willfulness, bad faith or fault, while Rule 41(b)’s requires a clear record of delay or contumacious conduct.”). The difference between these two standards has caused some confusion, but we have made clear that the Rule 41(b) standard is actually a stricter standard than the Rule 37(b) standard, In re Pansier, 417 Fed.Appx. 565, 569 (7th Cir.2011), and we have intimated that a finding of willfulness, bad faith or fault is only necessary if Rule 41(b)’s “clear record” of delay is not present. See Maynard, 332 F.3d at 468 (“[E]ven without a clear record of delay, contumacious conduct or prior failed sanctions, a court can apply the sanction of dismissal for Rule 37 violations with a finding of willfulness, bad faith, or fault.” (internal quotation marks omitted)). In the case at hand, the district court made a finding that appellants displayed a pattern of “willful delay and avoidance,” thus meeting the Rule 37 standard of willfulness, bad faith, or fault. A comparison to relevant case law clearly illustrates that this finding was not erroneous. In Aura Lamp & Lighting, Inc. v. International Trading Corp., for instance, we did not find an abuse of discretion when a Rule" }, { "docid": "16536755", "title": "", "text": "also United States v. Smith, 618 F.2d 280 (5th Cir.), cert. denied, 449 U.S. 868,101 S.Ct. 203, 66 L.Ed.2d 87 (1980). The issues that the Steinbrechers seek to litigate have been decided many times. In Lonsdale v. Commissioner, 661 F.2d 71 (5th Cir.1981) (per curiam), we announced that future litigants who continued to advance long-defunct arguments, such as those raised here by the taxpayers, would be subject to sanctions under Rule 38 of thé Federal Rules of Appellate Procedure. As the Ninth Circuit stated in Edwards: “Meritless appeals of this nature are becoming increasingly burdensome on the federal court system.” 680 F.2d at 1271. For these reasons, we AFFIRM the judgment of the Tax Court and impose double costs on appellants. See Knighten v. Commissioner, 702 F.2d 59 (5th Cir.1983). . Rule 104(c)(3) of the Rules of Practice and Procedure of the United States Tax Court provides that, if a party fails to comply with an order of the court, the court may, in its discretion, dismiss the taxpayers’ petitions and render a default judgment against them. . See Eisele v. Commissioner, 580 F.2d 805 (5th Cir.1978) (per curiam); see also Watson v. Commissioner, 690 F.2d 429 (5th Cir.1982) (per curiam). (Rule 123(b) dismissal for failure to comply with discovery order); Miller v. Commissioner, 654 F.2d 519 (8th Cir.1981) (per curiam) (same). . Watson, 690 F.2d at 431; Freedson v. Commissioner, 565 F.2d 954, 955 (5th Cir.1978) (Rule 123(b) dismissal); cf. Ramsay v. Bailey, 531 F.2d 706 (5th Cir.1976) (per curiam), cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977) (Fed.R.Civ.P. 41(b) dismissal). Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234, 239 (1972); McCoy v. Commissioner, 696 F.2d 1234, 1236 (9th Cir. 1983); Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982) (per curiam). . See, e.g., Rechtzigel, 703 F.2d at 1063-64; McCoy, 696 F.2d at 1236; Edwards, 680 F.2d at 1270; Eisele, 580 F.2d at 805." }, { "docid": "20954837", "title": "", "text": "mail today,” then acknowledging that she hadn’t been able to comply “because I work six days a week” and later still “because I had a [real estate] trial,” then returning to her first point: “I was ready for my — ready to put it in the mail today.” She told the court that she was prepared to be deposed on July 15 as agreed, but then she backtracked, saying that “we had agreed on a Thursday for all of my depositions, and [Cingular] did not give me Thursdays.” The district judge rejected Fischer’s excuses and told her “it is not a question of preparedness, it is a question of doing.” Noting the inconsistencies in her explanations and the fact that the case had been dismissed once before for failure to prosecute, the judge now dismissed the case with prejudice, precipitating this appeal. He did so without warning Fischer that dismissal loomed, though Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993), says there “must” be such a warning, and Ball’s “must” was quoted in Aura Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d 903, 907-08 (7th Cir.2003); see also Williams v. Chicago Board of Education, 155 F.3d 853 (7th Cir.1998), while In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam), says that the court “should” warn attorneys but “must” warn pro se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.2000), that the court generally “should” warn but “must” warn if the plaintiffs failure to prosecute is due only to ordinary misconduct. Most of our cases, however, soften “must” to “should,” Harrington v. City of Chicago, 433 F.3d 542, 549 (7th Cir.2006); Moffitt v. Illinois State Board of Education, 236 F.3d 868, 873 (7th Cir.2001); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (per curiam); Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir.1998), or treat the terms as interchangeable (as in Ball, Bluestein, and Williams), or term the requirement of a warning merely the “general” rule. Federal Election Comm’n v. Al Salvi for Senate Committee, 205 F.3d 1015," }, { "docid": "11693162", "title": "", "text": "discretion to manage litigation. “Because district judges have a better understanding of their litigants and their docket, review of managerial decisions such as this one are appropriately deferential.” Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994). In this case, however, we believe the district court acted beyond its discretionary authority in dismissing sua sponte the first action. In Link, the Supreme Court held that the absence of express notice prior to a sua sponte dismissal with prejudice for failure to prosecute is not an automatic denial of due process. 370 U.S. at 632, 82 S.Ct. 1386. However, in Ball v. City of Chicago, 2 F.3d 752 (7th Cir.1993), we restricted a district court’s dismissal powers in this regard by requiring the court to provide “due warning” to plaintiffs counsel. Although we recognized in Ball that there may be extreme circumstances in which an explicit warning is unnecessary before sua sponte dismissal is used as a sanction, id. at 756; see also Johnson, 34 F.3d at 468 (encouraging, but not requiring, a warning before dismissing a case for failure to prosecute where the plaintiff repeatedly delayed the litigation and finally failed to attend the trial without sufficient excuse), we have repeatedly emphasized the general rule that explicit warning must be given to a plaintiffs counsel prior to dismissal. See Williams v. Chicago Bd. of Educ., 155 F.3d 853, 858 (7th Cir.1998). “[D]ismissals without warning are appropriate in only the most extreme cases, where it is clear that counsel must have expected his actions (or inaction) to be answered with dismissal.” In re Bluestein & Co., 68 F.3d 1022, 1026 (7th Cir.1995). Although we do not excuse the Commission’s conduct—indeed, we are puzzled that the Commission put itself in this position at all—it is hard to see how the recitation of the local rules in the April order would have highlighted the possibility of sanctions far beyond those authorized by the rules themselves. Under Ball, the district court’s actions in this case amount to abuse of discretion. B. Nevertheless, despite our conclusion that the district court abused its discretion in dismissing" }, { "docid": "20954838", "title": "", "text": "in Aura Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d 903, 907-08 (7th Cir.2003); see also Williams v. Chicago Board of Education, 155 F.3d 853 (7th Cir.1998), while In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam), says that the court “should” warn attorneys but “must” warn pro se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.2000), that the court generally “should” warn but “must” warn if the plaintiffs failure to prosecute is due only to ordinary misconduct. Most of our cases, however, soften “must” to “should,” Harrington v. City of Chicago, 433 F.3d 542, 549 (7th Cir.2006); Moffitt v. Illinois State Board of Education, 236 F.3d 868, 873 (7th Cir.2001); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (per curiam); Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir.1998), or treat the terms as interchangeable (as in Ball, Bluestein, and Williams), or term the requirement of a warning merely the “general” rule. Federal Election Comm’n v. Al Salvi for Senate Committee, 205 F.3d 1015, 1018 (7th Cir.2000). Several of our cases (two discussed in the next paragraph — plus Ball itself, the original of the “must” requirement) are explicit that a warning is not always required, as are a number of cases in other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir.2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000); Rodgers v. Curators of the University of Missouri, 135 F.3d 1216, 1221 (8th Cir.1998); Ehrenhaus v. Reynolds, 965 F.2d 916, 919, 921-22 (10th Cir.1992). Ball’s use of “must” was not intended to lay down a rigid rule, as is clear from discussion elsewhere in the opinion. 2 F.3d at 756. It was intended rather as a useful guideline to district judges — a safe harbor to minimize the likelihood of appeal and reversal. Ball differs only in tone and nuance from the earlier discussion of the warning issue in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir.1994), where we said that “although district courts are encouraged to warn litigants before dismissing a" }, { "docid": "14002705", "title": "", "text": "AINSWORTH, Circuit Judge: Taxpayers, Ralph Freedson, his wife and First Trust Company of Houston, Inc., appeal the Tax Court’s dismissal of their petition relative to their protest of the Internal Revenue Service’s (IRS) assessments of deficiencies and additional taxes for 1968. Taxpayers had alleged numerous errors in the IRS’s adjustments, among which were disputed items pertaining to unreported income reflected in bank deposits, unreported legal fees, allowances for repair expenses and the amount of petitioners’ net operating loss carryover. When taxpayers were unprepared to present their case at the May 10, 1976 trial date, the IRS filed motions to dismiss for lack of prosecution. In her opinion of March 16, 1977, Judge Hall granted the IRS’s motion to dismiss and assessed the deficiencies against taxpayers. Rule 123(b) of the Tax Court Rules of Practice and Procedure states: “For failure of a petitioner properly to prosecute ., the Court may dismiss at any time and enter a decision against the petitioner.” While few cases have interpreted the new Rule 123(b), the Advisory Committee Note indicates that standards for applying Rule 41 of the Federal Rules of Civil Procedure should govern dismissals by the Tax Court. In that context it is well settled that an appellate court will not reverse the trial court’s dismissal absent an abuse of discretion. See Ramsay v. Bailey, 5 Cir., 1976, 531 F.2d 706, cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977); Pond v. Braniff Airways, Inc., 5 Cir., 1972, 453 F.2d 347. On the record before us we find no abuse of discretion. The present case has been pending for a sufficient length of time to enable petitioners to prepare their case. The notices of deficiencies were dated April 26, 1972 and July 24, 1972. Taxpayers filed their petitions on July 24, 1972 and August 7, 1972. Since that time this action has been set for trial three times. On each occasion taxpayers sought a continuance. Even in the absence of intentional effort to delay this trial, taxpayers cannot expect constantly to assign priorities to other legal matters at the expense of" }, { "docid": "13111181", "title": "", "text": "the record; counsel for defendants Hamlin, Doerr, and Wisely conceded “[i]t was the understanding of the undersigned that plaintiffs expert, Dr. Lewan, was not barred from testifying at trial.” Nonetheless, the court rejected Gabriel’s contention of mistake and denied the motion. In doing so the judge elaborated that even if Dr. Lewan’s testimony had not been barred, “plaintiffs counsel’s failure to secure his testimony by deposition, for use at trial or otherwise, was sufficient grounds for this Court to ... dismiss the action.” This appeal followed. II. Discussion We review a district court’s denial of a continuance and dismissal for want of prosecution for abuse of discretion and will reverse “only if the decision strikes us as fundamentally wrong.” Moffitt v. Ill. State Bd. of Educ., 236 F.3d 868, 873 (7th Cir.2001). Although this hurdle is admittedly high, it is not insurmountable. To that effect, we have also stated “ ‘dismissal for failure to prosecute is an extraordinarily harsh sanction’ that should be used ‘only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.’ ” See Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (citing Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998)). Further, “we have repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without first providing an explicit warning to the plaintiff.” Sharif v. Wellness Intern. Network, Ltd., 376 F.3d 720, 725 (7th Cir.2004); see also Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993). We agree with Gabriel that the record simply does not support the district court’s conclusion that Dr. Lewan’s testimony remained barred at the time of trial. The August 31, 2004 order reopening discovery specifically granted Gabriel additional time to provide his expert’s report following Dr. Garcia’s deposition, and its language that “[p]laintiff s expert shall review [Dr. Garcia’s] deposition and provide his report” plainly indicates that expert and deponent are not one and the same. Although there is some ambiguity given the order’s failure to mention Dr. Lewan" }, { "docid": "3711506", "title": "", "text": "under Tax Court Rule 123(b) for failure to prosecute and under Tax Court Rule 104(c)(3) for failure to comply with the order to compel production of documents. The court subsequently denied taxpayers’ motion to vacate. In its opinion, it explained that taxpayers’ counsel had violated the order compelling discovery, ignored a proposed stipulation of fact in violation of Tax Court Rule 91(a)(1), violated the standing pretrial order by failing to submit a trial memorandum, failed to submit an expert witness report in violation of Tax Court Rule 143(f), and moved for a continuance five days prior to trial. According to the court, “dismissal was justified in order to protect the integrity of the Court’s rules and orders.” II The legal standard for involuntary dismissals under Federal Rule of Civil Procedure 41(b) governs Tax Court dismissals under Tax Court Rule 123(b). Crandall v. Commissioner of Internal Revenue, 650 F.2d 659, 660 (5th Cir.1981). “While the power to dismiss clearly lies with the district courts, it is appropriately exercised only with restraint. ‘Against the power to prevent delays must be weighed the sound public policy of deciding cases on their merits.’ ” Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir.1978) (quoting Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.1974)). This Circuit requires that the trial court consider four factors before dismissing a case for failure to prosecute: (1) the plaintiffs degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. See, e.g., Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir.1989). The standard of our review is whether the Tax Court abused its discretion. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978). A dismissal sanction is usually inappropriate when it unjustly penalizes a blameless client for the attorney’s behavior. See Dove, 569 F.2d at 810; McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976); Reizakis, 490 F.2d at 1135; see also Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1077-79 (D.C.Cir.1986). There" }, { "docid": "22236975", "title": "", "text": "the Third Circuit that before dismissing a suit for failure to prosecute, the district judge must notify the plaintiff directly so that he can consider whether to replace his lawyer. Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir.1987); Curtis T. Bedwell & Sons v. International Fidelity Ins. Co., 843 F.2d 683, 693 n. 19 (3d Cir.1988); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1147 (3d Cir.1990). Our cases, like those of other circuits, contain “hard” dicta (as in Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991), and Washington v. Walker, 734 F.2d 1237 (7th Cir.1984)) and “soft” dicta (as in Owen v. Wangerin, 985 F.2d 312 (7th Cir.1993), and Palmer v. City of Decatur, 814 F.2d 426 (7th Cir.1987), which could be thought to anticipate the Third Circuit’s rule, see id. at 428) concerning dismissals for failure to prosecute; and it is not even certain that all the holdings can be reconciled. The circumstances warranting such a dismissal are infinitely variable, making it difficult to formulate a standard more particular than that the district judge should not act precipitately, willfully, unreasonably, but also making it difficult to determine when the standard has been correctly applied. Fixed deadlines are a possibility but have their own problems. To specify for example that a suit cannot be dismissed for want of prosecution unless it has reached a fixed age might tend to make that amount of delay a minimum, in effect lengthening the deadlines for filings set in the federal civil rules — though N.D.Ill.R. 21(A) provides that a ease that has been inactive for more than six months is a candidate for dismissal for failure to prosecute, and we do not mean to disparage such an approach. Given the variability of circumstances from case to case, the fact that the district judge will have acquired a better feel than we appellate judges can for the attitudes of the litigants and lawyers in the district court, the judge’s greater familiarity with his own calendar, and the inherently judgmental character of managerial decision-making, appellate review of a" }, { "docid": "20954840", "title": "", "text": "case for failure to prosecute, whether they in fact do so is clearly within their discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991). Leaving the decision to the district courts ensures that dilatory tactics are sanctioned appropriately. The prejudice incurred by a delay in one case may far outweigh that caused in another. Were district courts required to warn litigants before dismissing a case, we would in effect be granting each litigant one opportunity to disregard the court’s schedule without fear of penalty regardless of the harm done to other litigants. Such a rule would impermissibly burden the district courts in their efforts to manage their dockets. Using this standard, we held in Lockhart that inconsistencies in the plaintiffs excuse for not attending a discovery-related status hearing combined with the plaintiffs record of dilatory conduct supported the trial judge’s decision to dismiss the case with prejudice even though he did not provide a warning beforehand.” Granted, the facts in Johnson were more extreme than in this case, and Kruger v. Apfel, supra, 214 F.3d at 787, sought to confine Johnson; but it did not purport to overrule it. Cingular’s request that the suit be dismissed if Fischer continued to disregard discovery deadlines, the fact that the judge had already dismissed the suit once for failure to prosecute, and Fischer’s lame excuses at the hearing were circumstances in light of which, given her dilatoriness, we cannot say that the district judge abused his discretion in dismissing the suit with prejudice the second time, even though he had given no warning. See Williams v. Chicago Board of Education, supra, 155 F.3d at 858-59. The first point — Cingular’s request, communicated in a motion served on Fischer, that the judge dismiss the case if she continued to ignore discovery deadlines — deserves particular emphasis. The purpose of requiring a warning is not to entrap district judges but to make sure that the plaintiff is warned. The warning need not (despite a contrary suggestion in Kruger v. Apfel, supra, 214 F.3d at 788) always come from the judge. This is a general" } ]

[ { "docid": "18753778", "title": "", "text": "would entitle the district court to make a mandatory withdrawal of the reference from the bankruptcy court. (b) Consideration of the NGPA If any consideration of the NGPA is necessary, such consideration would not be substantial and material to the resolution of the proceedings. In re White Motor Corp., 42 B.R. 693 (N.D.Ohio 1984); In re Baldwin-United Corp., 57 B.R. 751 (S.D.Ohio 1985). Assuming the NGPA price ceiling is applicable, the relevant provisions include Sections 102, 105, 106 and 109. These provisions govern the nature of the agreement, i.e. a Rollover Contract, and its applicable ceiling price. The parties do not dispute the definitions or terms of the provisions but merely dispute their application. Therefore, the bankruptcy court would not be required to interpret the language of the statute, but merely apply the law to the facts. Such consideration of the statute is not substantial and material because it does not involve “significant interpretation” of the NGPA. In re Johns-Manville Corp., 63 B.R. at 602. Nor do the issues that could potentially arise under the NGPA dominate the issues arising under title 11 and state law. In re White Motor, 42 B.R. at 703; In re Baldwin-United, 57 B.R. at 757; Superior Oil Co. v. Pioneer Corp., 706 F.2d 603 (5th Cir.1983) (federal question jurisdiction was not invoked under 28 U.S.C. § 1331 in action between gas seller and purchaser under gas sale contract which “stripped to its essentials, ... seeks enforcement of state-created contract rights” even if the dispute pivots on issues of federal law). Accordingly, a consideration of the NGPA, if any, would not be substantial and material because there would not be significant interpretation of the NGPA. The alleged NGPA issues do not predominate over the title 11 and state law issues and a consideration or utilization of the statute, if any, would merely require an application of law to fact. Discretionary Withdrawal 28 U.S.C. § 157(d) states The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party," } ]

[ { "docid": "1824366", "title": "", "text": "Judge Leval observed that “CERCLA is a statute ‘rooted in the commerce clause’ and is precisely ‘the type of law[ ] Congress had in mind when it enacted the statutory withdrawal provision.' ” In re Johns-Manville, 63 B.R. at 602 (citing United States v. ILCO, Inc., 48 B.R. 1016, 1021 (N.D.Ala.1985) (withdrawing government’s CERCLA cause of action in accordance with § 157(d))). Finding that the adversary proceedings raised questions that required “significant interpretation of the CERCLA statute ... [and] assessment of the relationship of such CERCLA claims to ... the Bankruptcy Code,” the Court held: It ... seems quite clear that this controversy falls within the category of cases mandatorily withdrawn from the Bankruptcy court’s jurisdiction by § 157(d), in that it “requires consideration of both title 11 and other laws of the United States regulating ... interstate commerce.” In re Johns-Manville Corp., 63 B.R. at 603 (citing Maislin Indus. v. C.J. Van Houten E Zoon Inc., 50 B.R. 943, 948 (E.D.Mich.1985)). The Court rejected the debtor’s assertion that a CERCLA claim for contribution involved only a state law claim, and, thus, was not within the ambit of § 157(d), stating: “This contention is not substantial. Rights of contribution ... under federally created causes of action have repeatedly been held to the question of federal law.” Id. (citations omitted). In Combustion Equipment, Judge Sand confronted a similar CERCLA issue in a slightly different context. In that case, the debtor, Carter Day Industries, Inc., sued the EPA in bankruptcy court seeking a declaration that its discharge in bankruptcy more than two years earlier also discharged it from any potential liability under CERCLA for contamination of two landfill sites. The Court noted: The question whether any claims against Carter Day [predecessor to the debtor] may be asserted under CERCLA depends on when such claims are deemed to have arisen. The confirmation of a plan in Chapter 11 discharges the corporate debtor from any claim that arose before, but not after the date of such confirmation. In re Combustion Equipment Assocs., Inc., 67 B.R. at 710. At the time Carter Day filed its" }, { "docid": "22076737", "title": "", "text": "and July 10, 1984, While the first sentence of § 157(d) parallels § (c)(2), the second sentence, relied upon by PBGC, is entirely new, and cases decided under § (c)(2) and cited by the Trustee are not relevant. PBGC is on less stable ground, however, when it suggests that § 157(d) strips district courts of all discretion once a party moves for withdrawal of reference. Indeed, in its reply brief PBGC simultaneously advocates such a position and recognizes its untenability: ... If Congress simply intended to endorse the case law developed under Section (c)(2) of the Emergency Rule, it could have done so simply by limiting Section 157(d) to the first sentence, or by attempting to codify the principles the [Trustee] claims can be distilled from the case law under Section (c)(2). Instead, Congress added a completely new provision which mandates withdrawal “if resolution of the proceeding requires consideration of both title 11 and other laws of the United States .... ” (Emphasis added). Neither the plain language of the mandatory withdrawal provision nor the legislative history suggests that it applies only to non-core proceedings in which non-bankruptcy federal law “dominates” the decision. Congress certainly was capable of including such limitations if it had found them appropriate. Reply Brief at 20. As the footnote recognizes, mandatory withdrawal of all proceedings requiring consideration of non-Code federal law would force district courts to withdraw matters in which Code questions overwhelmingly predominate and consideration of non-Code statutes would be de mini-mus. Moreover, any reading of § 157(d) which limits bankruptcy court jurisdiction to questions arising solely under the Code would strip the court of much of its authority to resolve debtor-creditor disputes, since numerous Code provisions themselves require reference to other state and federal law. Both the Contribution Claims — a reclassification proceeding under § 507 — and the Letter Claims — arising as a § 502 objection to claim — involve statutory provisions that explicitly refer to non-Code law. Under § 502, for example ... To the extent that applicable law, including state law, would afford the debtor a defense to a" }, { "docid": "10167884", "title": "", "text": "MEMORANDUM AND ORDER ROGERS, District Judge. This matter is presently before the court upon a recommendation from the bankruptcy court on a motion for mandatory withdrawal filed by the United States on behalf of the Environmental Protection Agency (EPA). Having carefully reviewed the bankruptcy court’s memorandum opinion, this court is now prepared to rule. Debtor Kuhlman Diecasting Company filed a Chapter 11 bankruptcy petition on •November 29, 1990. Following a fire at the debtor’s facility in Stanley, Kansas on April 19, 1991, the EPA inspected the site and found hazardous wastes. On April 23, 1991, the EPA began a response action at the site under § 104(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9604(a), and the National Contingency Plan, 40 C.F.R. § 300.65. After incurring costs in its assessment and cleanup activities, the EPA filed an application for reimbursement of administrative expenses in the Chapter 11 case on September 30, 1991. The application requested reimbursement of $1,435,000.00. An objection to this application was subsequently filed by the Creditors’ Committee. The EPA responded with a motion for withdrawal of reference pursuant to 28 U.S.C. § 157(d). The bankruptcy court filed its recommendation on' the motion on December 3, 1992. In its memorandum opinion, the bankruptcy court noted that a split in the courts has developed on the appropriate interpretation of the provisions of the mandatory withdrawal statute. The bankruptcy court recommended that this court withdraw this matter for the purpose of (1) announcing which standard applies under the mandatory withdrawal statute, and (2) whether the interpretations of CERCLA required by the EPA’s application for expenses should be made by the district court or the bankruptcy court. This court shall follow the bankruptcy court’s recommendation and withdraw this matter to consider the aforementioned questions. We begin by consideration of the mandatory withdrawal statute, 28 U.S.C. § 157(d). Section 157(d) provides as follows: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion" }, { "docid": "10167895", "title": "", "text": "dated July 23, 1991, and signed an Order of Confirmation that was filed March 11, 1992. While the Creditors’ Committee objected to the United States’ application for administrative expense status and filed a Motion For Pretrial Conference and Special Trial Setting requesting a full evidentiary hearing on the merits of the United States’ Application, neither it nor any other party objected to the United States’ motion for withdrawal of reference of the administrative expense application. This leaves the Court without a brief to assist it in deciding the issues presented by the motion to withdraw reference. The only opposition to withdrawal of reference is found in the Committee’s objection to the administrative expense claim. As previously stated, that objection is that there is no showing that the EPA’s response costs were “necessary to comply with the provisions of CERCLA and the National Contingency Plan.” DISCUSSION Discretionary and mandatory withdrawal of reference of cases and proceedings to the district court are controlled by 28 U.S.C. § 157(d): The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regu-. lating organizations or activities affecting interstate commerce. (Emphasis added.) The United States maintains that the District Court must withdraw reference of this proceeding because the mandatory withdrawal of reference provision, 28 U.S.C. § 157(d), governs. It posits that although this is a core proceeding in bankruptcy (an administrative expense claim allowance proceeding), its resolution requires substantial and material consideration of both title 11 and CERCLA, a federal statute regulating organizations or activities affecting interstate commerce. Alternatively, the United States asserts that if the mandatory provision of 28 U.S.C. § 157(d) does not govern, its discretionary provision justifies withdrawal of reference of the proceeding. In addition to the statutory reference above, there is one Federal Rule" }, { "docid": "20918155", "title": "", "text": "a relatively new, com plex, and recently amended statutes, and for this reason, mandatory withdrawal was granted. Perhaps just as important to the removal determinations in these cases was that the proceedings presented and required resolution of “substantial and material conflicts” between non-title 11 federal laws and the Bankruptcy Code. See In re Combustion, 67 B.R. at 713; Chateaugay Corp., 88 B.R. at 586-88. Of similar effect is Pension Benefit Guaranty Corp. v. The LTV Corp. (In re Chateaugay Corp.), 86 B.R. 33, 38-39 (S.D.N.Y.1987), where issues of first impression under ERISA were “presented in sharp conflict with competing provisions of the Code.” See also In re Adelphi Institute, 112 B.R. at 537. In sum, the common theme ringing throughout these cases is that Section 157(d) should not “become an ‘escape hatch’ for matters properly before [the bankruptcy] court.” Id. at 536; In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986). In the case at bar, Norton has failed to adequately demonstrate that adversary proceeding no. 94-91113 should be subject to mandatory withdrawal. Although there is no dispute that resolution of the proceeding in question will require consideration of both bankruptcy and non-bankruptcy, more specifically CERCLA, laws, it is equally clear that such consideration of CERCLA will not rise to the level required for mandatory withdrawal. There is nothing in the record to indicate that there exists any potential conflicts between the Code and CERCLA nor has the movant shown that the adversary proceeding will require “substantial and material” consideration of both bankruptcy and non-bankruptcy laws. As stated earlier, the mere fact that the bankruptcy judge is forced to determine issues outside the scope of bankruptcy laws is insufficient to mandate withdrawal until and unless the movant can demonstrate that such issues are one of first impression or that there is a conflict between the Code and non-Code cases. This, Norton has failed to do. It is here noted that Norton primarily relies on two cases in support of its position: New York v. Exxon Corp., 932 F.2d 1020 (2d Cir.1991) and In re Revere Copper and Brass, Inc., 169" }, { "docid": "18735973", "title": "", "text": "word “shall” unambiguous on its face, but the legislative history, which is controlling, supports the conclusion that withdrawal is mandatory in the limited set of cases outlined above. See 130 Cong. Rec. S6087 (daily ed. May 21, 1984) (re marks of Sen. Heflin) (district court “is mandated to grant a party’s motion to withdraw proceedings involving both Title 11 and other laws of the United States regulating organizations and activities affecting interstate commerce”); S.Rep. No. 55, 98th Cong., 1st Sess. 16 (1983) (“recall is mandatory” where claim does not arise under Title 11 or where federal laws regulating organizations or activities affecting interstate commerce are involved); 130 Cong.Rec. S7622 (daily ed. June 19, 1984) (interpretation of section 157(d) by Sen. De-Concini) (withdrawal is mandatory when laws regulating organizations or activities affecting interstate commerce are likely to be considered); cf. Patchogue Nursing Center v. Bowen, 797 F.2d 1137, 1143 (2d Cir.1986) (“shall” is mandatory language). Therefore, if a case meets section 157(d)’s standard as interpreted above, the district court is required to grant a party’s request for mandatory withdrawal. The District Court Must Determine When a CERCLA Claim Arises The issue presented in this case is essentially that which was presented in United States v. Johns-Manville Corp., 63 B.R. 600 (S.D.N.Y.1986). In that case, Judge Leval determined that adversary proceedings brought against Johns-Manville following a determination of bankruptcy should be withdrawn from the Bankruptcy Court. The adversary proceedings sought declaratory judgments that the Bankruptcy Code’s provision for an automatic stay of all judicial proceedings involving claims against the debtor which arose prior to the determination of bankruptcy, 11 U.S.C.A. § 362(a)(1) (West Supp.1986), did not bar EPA’s action for cost recovery and a joint tortfeasor’s action for contribution under CERCLA. The question whether the actions under CERCLA were to be stayed turned on whether these CERCLA causes of action “arose” prior or subsequent to Johns-Manville’s filing in bankruptcy. Finding a significant interpretation of CERCLA and its relationship to the automatic stay provision necessary to resolve the issue, Judge Leval ordered withdrawal from the Bankruptcy Court. Unlike Johns-Manville, in this case EPA" }, { "docid": "1781115", "title": "", "text": "prejudice to appellee.) B. Withdrawal of Reference to Bankruptcy Court The court will next address the government’s argument that reference of this proceeding to the bankruptcy court must be withdrawn pursuant to the mandate contained in 28 U.S.C. § 157(d). The statutory mechanism by which bankruptcy cases and other civil proceedings may be referred to the bankruptcy court is provided in 28 U.S.C. §§ 157-158. Section 157(a) states that: “[e]ach district court may provide that any or all eases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.” Pursuant to this section, this court routinely refers bankruptcy cases within the Northern District of New York to the bankruptcy court. Section 157(d) permits the district court to withdraw its reference of a bankruptcy petition or any case or proceeding relating to the petition as follows: The district court may withdraw, in whole or in part, any case or proceeding referred under this section on its own motion or on timely motion of any party, for cause shown. The district court shall, on its own motion or on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d) (emphasis added). The mandatory withdrawal provision contained in § 157(d) has been interpreted to “require withdrawal to the district court of cases or issues that would otherwise require a bankruptcy judge to engage in significant interpretation, as opposed to simple application, of federal laws apart from the bankruptcy statutes.” City of New York v. Exxon Corp., 932 F.2d 1020, 1026 (2d Cir.1991). In other words, where the bankruptcy judge would have to engage in “something more than the mere process of examining, thinking about or taking into account” federal laws outside of the Code, § 157(d) mandates withdrawal. In re American Freight System, Inc., 150 B.R. 790, 792" }, { "docid": "1824364", "title": "", "text": "the other hand, a party, like AT & T, asserting an interest in the debtor that depends on a federal law potentially at odds with the Bankruptcy Code will prefer to have its interest resolved in what it perceives to be the more balanced, or neutral, adjudicatory environment of the district court. Here both parties agree with the “substantial and material” standard, but disagree whether it is met on these facts. As the Honorable Pierre N. Leval observed in Johns-Manville, “[precisely where the substantial and material line falls is open to dispute.” In re Johns-Manville, 63 B.R. at 602. Distinct from the private interests at stake in a withdrawal motion, however, are the difficult jurisdictional issues that appear whenever evolving national values embodied in a comparatively young federal statute clash with the historically accepted and well-settled values set forth in the Bankruptcy Code. In the withdrawal motion at issue in PBGC v. LTV, this court concluded that such a conflict between the Bankruptcy Code and the Employee Retirement Income Security Act (“ERISA”) required withdrawal from the bankruptcy court. Similarly, in two cases raising environmental law issues under CERCLA similar to those in the AT & T Complaint, the Honorable Leonard B. Sand and the Honorable Pierre N. Leval concluded that withdrawal was necessary. See In re Combustion Equipment Assocs., Inc., 67 B.R. 709; In re Johns-Manville Corp., 63 B.R. 600. The issue in both Combustion Equipment and Johns-Manville was whether § 157(d) mandates withdrawal of a proceeding in which a court must determine whether a claim has arisen under CERCLA as of a specific date and, consequently, whether a “claim” exists under section 101(4) of the Bankruptcy Code. In Johns-Manville, the EPA sued a party, Boston & Maine, which shared joint and several responsibility under CERCLA with the debtor, Johns-Man- ville, for costs expended by the EPA to clean up a hazardous waste site. Thereafter, the EPA and Boston & Marine brought separate adversary proceedings against Johns-Manville in the bankruptcy court seeking a determination of whether and when their respective claims arose. In connection with the plaintiffs’ motions for withdrawal," }, { "docid": "22477972", "title": "", "text": "to such claim. The Court found that disposition of these matters implicated substantial and material consideration of non-bankruptcy federal statutes, and warranted mandatory withdrawal of reference pursuant to 28 U.S.C. § 157(d). The legal issues addressed in this Order dispose of the material matters at the heart of the intersection between the Code and CERCLA which had prompted the withdrawal of reference. At this time, the Court is of the opinion that this case should be referred to bankruptcy court pursuant to 28 U.S.C. § 157(a). Bankruptcy courts provide the expertise and efficiency intended by Congress in adjudication of core bankruptcy matters. See In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984). Withdrawal of reference is no longer warranted where it is a question of “straight forward application of a federal statute to a particular set of facts.” In re Johns-Manville Corp., 63 B.R. 600, 602 (S.D.N.Y.1986). VI. Conclusion The Court has made the following determinations: 1.All future response and natural resource damages costs based on pre-petition conduct, fairly within contemplation of the parties at the time of Debtors’ bankruptcy, are claims under the Bankruptcy Code; 2. All liability at any site not listed in the amended United States’ Proof of Claim based on pre-petition conduct, fairly within contemplation of the parties at the time of Debtors’ bankruptcy, constitutes a claim under the Code; 3. All response costs incurred post-petition at a site presently owned by Debtors as a result of pre-petition conduct are administrative priority expenses where the costs were necessary to remedy conditions posing an imminent and identifiable threat to the public health or safety; and 4. Subject to a finding of divisibility, Debtors’ liability at the Listed Sites will be estimated on the basis of joint and several liability. Having determined the foregoing legal issues, the Court REFERS this case to bankruptcy court for further proceedings in the light of this opinion. SO ORDERED. . CERCLA refers to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9675 (1989). ." }, { "docid": "10167885", "title": "", "text": "An objection to this application was subsequently filed by the Creditors’ Committee. The EPA responded with a motion for withdrawal of reference pursuant to 28 U.S.C. § 157(d). The bankruptcy court filed its recommendation on' the motion on December 3, 1992. In its memorandum opinion, the bankruptcy court noted that a split in the courts has developed on the appropriate interpretation of the provisions of the mandatory withdrawal statute. The bankruptcy court recommended that this court withdraw this matter for the purpose of (1) announcing which standard applies under the mandatory withdrawal statute, and (2) whether the interpretations of CERCLA required by the EPA’s application for expenses should be made by the district court or the bankruptcy court. This court shall follow the bankruptcy court’s recommendation and withdraw this matter to consider the aforementioned questions. We begin by consideration of the mandatory withdrawal statute, 28 U.S.C. § 157(d). Section 157(d) provides as follows: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. In construing this language, courts have reached different results as to its true meaning. The seminal case on the issue is In re White Motor Corp., 42 B.R. 693 (N.D.Ohio 1984), in which the court carefully examined the legislative history of the statute and determined that Congress did not intend for § 157(d) to become “an escape hatch through which most bankruptcy matters will be removed to the district court.” Id. at 704. The court concluded that withdrawal is mandatory “only if th[e court] ... can make an affirmative determination that resolution of the claims will require substantial and material consider ation of those non-Code statutes” which have more than a “de minimis” impact on interstate commerce. Id. at 705. This decision" }, { "docid": "10694919", "title": "", "text": "15, 2002, the Committee filed a motion to stay proceedings in the Bankruptcy Court. (This motion will be referred to as the “Estimation Proceeding”). 3. Legal Representative v. G-I Holdings, Inc., 02-CV-03971 On August 9, 2002, the Legal Representative filed its own motion to withdraw the reference of Debtor’s application for estimation, and in addition requested withdrawal of Debtor’s motion to fix a final date for filing proofs of claim. (This motion will be referred to as the “Bar Date Motion”). II. DISCUSSION A. Bankruptcy Jurisdiction 1. Motions to Withdraw Reference The District Court has original, but not exclusive, jurisdiction over all bankruptcy proceedings. See 28 U.S.C. § 1334(b). The Bankruptcy Court exercises such jurisdiction under a standing order of reference, as provided by 28 U.S.C. § 157(a). Once a Title 11 proceeding has been referred to the bankruptcy court, the district court’s authority to withdraw the reference is governed by 28 U.S.C. § 157, which provides for mandatory and permissive withdrawal. 28 U.S.C. 157(d) provides: The district court may withdraw, in whole or in part, any ease or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown, the district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding re quires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. Withdrawal from the Bankruptcy Court is mandatory under 28 U.S.C. § 157(d), where the district court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States. Courts have interpreted § 157(d) to mandate withdrawal “only if [the] court can make an affirmative determination that resolution of the claims will require substantial and material consideration of ... non[bankruptcy] Code statutes.” In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984). 28 U.S.C. § 157(d) provides that permissive withdrawal is appropriate “for cause shown.” What constitutes “cause” to withdraw is not evident from the statute, see NDEP Corp. v. Handl-It," }, { "docid": "1279394", "title": "", "text": "laws of the United States regulating organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d). Because this sentence of Section 157(d), if read literally, would eviscerate much of the work of the bankruptcy courts, the “courts are admonished by the legislative history to construe this sentence narrowly.” 1 Collier on Bankruptcy 113.01 at 3-59 (15th ed. 1987). The leading commentator, noting the conjunctive “and” in the sentence in question, has observed that a matter is not subject to mandatory withdrawal unless interpretation of both the provisions of Title 11 and other laws of the United States is required for resolution of the controversy. Id. at 3-61. See also Block v. Anthony Tammaro, Inc., 56 B.R. 999, 1004-07 (D.N.J.1986); In re Baldwin-United Corp., 47 B.R. 898, 899 (S.D. Ohio 1984). At a minimum, Section 157(d) does not mandate withdrawal unless the district court “can make an affirmative determination that resolution of the claims will require substantial and material consideration of non-code statutes.” In re White Motor Corp., 42 B.R. 693, 705 (D.Ohio 1984), cited with approval in In re Ionosphere Clubs, Inc., 103 B.R. 416, 419 (S.D.N.Y.1989). The courts have further defined this “substantial and material consideration” standard of White Motor to exclude from mandatory withdrawal those cases which involve only the application of non-title 11 federal statutes to a particular set of facts. They have done so in order that Section 157(d) is construed narrowly and “does not become an ‘escape hatch’ for matters properly before court.” In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986) (Leval, J.). Thus: It would seem incompatible with congressional intent to provide a rational structure for the assertion of bankruptcy claims to withdraw each case involving the straightforward application of a federal statute to a particular set of facts. It is issues requiring significant interpretation of federal laws that Congress would have intended to have decided by a district judge rather than a bankruptcy judge. Id. at 602 (emphasis in original). This approach was also followed to deny mandatory withdrawal in In re Texaco, 84 B.R. 911 (S.D.N.Y.1988) (Goettel, J.). There, the debtor" }, { "docid": "18564144", "title": "", "text": "the adjudication of part of a bankruptcy case.” Id. at 705 (emphasis added). This court agrees with Judge Ald-rich’s philosophy. It would thwart Congress’s intent to automatically withdraw the reference in this case solely on the ground that it involves in one way or another federal environmental laws. Clearly, the CWA, RCRA and CERCLA are rooted in the commerce clause and are the type of laws Congress had in mind when it enacted the mandatory withdrawal provision. But that provision will mandate withdrawal of this case only if this court can make an affirmative determination that resolution of the U.S.’s complaint will require substantial and material consideration of the CWA, RCRA, CERCLA and the federal regulations issued thereunder. This court is convinced that these federal statutes are not merely incidental to that resolution of the complaint, but rather are essential to the resolution. Without a substantial and material consideration of these statutes, the federal government has no case against defendants. A determination of whether injunctive relief is available under CWA, RCRA and CERCLA admittedly requires in this case a construction of applicable state environmental laws. If only state regulations applied, ILCO would have a strong argument that the mandatory provision did not apply. This case, however, also requires a detailed examination of explicit federal regulations and federal permit requirements. This ease is distinguishable from White Motor Corp., which required primarily an interpretation of bankruptcy laws. Congress intended for cases such as the instant case to be resolved by a district court judge. Even if the mandatory provision did not apply, this court would exercise its discretion under the permissive withdrawal provision of § 157(d) and withdraw the reference. The instant litigation most likely is not a core proceeding as described by 28 U.S.C. § 157(b)(2). Thus, if a bankruptcy judge were to conduct this litigation, he could not enter a final judgment unless the parties consented. A district judge would also have to take the time necessary to become familiar with the ease before adopting the proposed findings and conclusions of the bankruptcy judge. Moreover, if a party objects to" }, { "docid": "18564143", "title": "", "text": "“an escape hatch through which most bankruptcy matters will be removed to the district court.” White Motor Corp., 42 B.R. at 704. With this admonition in mind, Judge Aldrich concluded that the mandatory provision applied only if the district court could make an affirmative determination that resolution of the dispute required substantial and material consideration of those non-bankruptcy statutes. After examining each of PBGC’s alleged ERISA and related tax questions, Judge Aldrich found that the only statutes that had to be examined and applied to determine the classification of PBGC’s claims were sections 503 and 507 of the Bankruptcy Code. The court concluded: [f]or this Court to grant the motion to withdraw reference based on speculation about ERISA and IRC issues which may or may not arise and may or may not be germane to resolution of core Code proceedings would be inconsistent with the purposes underlying the very existence of the Bankruptcy Court and would encourage forum shopping in a manner Congress disdained when it sought to avoid “creating a multiplicity of forums for the adjudication of part of a bankruptcy case.” Id. at 705 (emphasis added). This court agrees with Judge Ald-rich’s philosophy. It would thwart Congress’s intent to automatically withdraw the reference in this case solely on the ground that it involves in one way or another federal environmental laws. Clearly, the CWA, RCRA and CERCLA are rooted in the commerce clause and are the type of laws Congress had in mind when it enacted the mandatory withdrawal provision. But that provision will mandate withdrawal of this case only if this court can make an affirmative determination that resolution of the U.S.’s complaint will require substantial and material consideration of the CWA, RCRA, CERCLA and the federal regulations issued thereunder. This court is convinced that these federal statutes are not merely incidental to that resolution of the complaint, but rather are essential to the resolution. Without a substantial and material consideration of these statutes, the federal government has no case against defendants. A determination of whether injunctive relief is available under CWA, RCRA and CERCLA admittedly requires" }, { "docid": "10167901", "title": "", "text": "Creditor’s Committee has not yet challenged the United States’ claim as pre-petition rather than post-petition, it has filed a Motion For Pretrial Conference and Special Trial Setting requesting a full evidentiary hearing on the merits of the United States’ Application for Reimbursement of Administrative Expenses. If the “pre-petition claim” versus “administrative expense” question should surface at the requested hearing, the district court would be the proper court to decide it under the authority of In re Johns-Manville Corp. Id. Since this Court cannot determine what precise issues are being raised under CERCLA, nor whether it must give substantial and material consideration to CERCLA to decide the allowability of the United States' administrative expense claim, the Court recommends that the District Court withdraw the proceeding to announce which standard applies under the mandatory withdrawal statute and whether the interpretations of CERCLA required in this proceeding should be made by the District Court or by the Bankruptcy Court. Accordingly, the Bankruptcy Clerk is directed to transmit this written recommendation to the Clerk of the District Court in accordance with D.Kan.Rule 706 forthwith. IT IS SO ORDERED. Dated at Topeka, Kansas, this 3rd day of December, 1992. . On October 23, 1991, Circle Business Credit, Inc. also objected to the United States' Application. Circle held an administrative expense claim of $20,278.56. It only objected to the priority of the United States’ payment prior to its own claim. The Order Confirming Debtor’s First Amended Plan of Liquidation filed March 11, 1992, specifically authorized payment to Circle Business Credit, Inc. prior to payment to the EPA. Since the Plan provides Circle with the priority it desired, its objection is no longer at issue. . A search of Westlaw reveals no 10th Circuit case announcing the standard applicable for determining mandatory withdrawal under 28 U.S.C. § 157(d)." }, { "docid": "23653153", "title": "", "text": "in Johns-Manville Corp. stated: It would seem incompatible with congressional intent to provide a rational structure for the assertion of bankruptcy claims to withdraw each case involving the straightforward application of a federal statute to a particular set of facts. It is issues requiring significant interpretation of federal laws that Congress would have intended to have decided by a district judge rather than by a bankruptcy judge. Johns-Manville Corp., 63 B.R. at 602. Because the interpretation of section 157(d) set forth in White Motor Corp. has been followed by all but one District Court and because the reasoning of those decisions appears more compelling, this Court will follow that standard. In this case, resolution of the underlying adversary proceedings requires substantial and material consideration of non-Bankruptcy Code laws regulating interstate commerce. Clearly, the OSHA statute and its regulations are rooted in the commerce clause and are the type of laws that Congress intended to have decided by Article III Judges when it enacted the mandatory withdrawal provision. 28 U.S.C. § 651. For example, in Johns-Manville Corp., the court held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) “is a statute ‘rooted in the commerce clause’ and is precisely ‘the type of law Congress had in mind when it enacted the statutory withdrawal provision.’ ” Johns-Manville Corp., 63 B.R. at 602; ILCO, 48 B.R. at 1021-22 (Resolution of complaint based upon allegations of violations of the Clean Water Act (“CWA”), Resource Conservation and Recovery Act (“RCRA”) and CERCLA required mandatory withdrawal); In re Combustion Equipment Associates, Inc., 67 B.R. 709 (S.D.N.Y.1986); see also In re Hartley, 55 B.R. 781, 784 (N.D.Ohio 1985) (“The Trustee’s allegation that the Defendant violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) makes it a necessity that the Court determine whether the Defendant’s activities were those prohibited by 18 U.S.C. §§ 1961-1968. There is no question this case is the type provided for by the second sentence of § 157(d) which requires mandatory withdrawal by the District Court.”). These cases demonstrate that proceedings filed in Bankruptcy Courts which involve issues requiring interpretation of non-Bankruptcy" }, { "docid": "1824365", "title": "", "text": "the bankruptcy court. Similarly, in two cases raising environmental law issues under CERCLA similar to those in the AT & T Complaint, the Honorable Leonard B. Sand and the Honorable Pierre N. Leval concluded that withdrawal was necessary. See In re Combustion Equipment Assocs., Inc., 67 B.R. 709; In re Johns-Manville Corp., 63 B.R. 600. The issue in both Combustion Equipment and Johns-Manville was whether § 157(d) mandates withdrawal of a proceeding in which a court must determine whether a claim has arisen under CERCLA as of a specific date and, consequently, whether a “claim” exists under section 101(4) of the Bankruptcy Code. In Johns-Manville, the EPA sued a party, Boston & Maine, which shared joint and several responsibility under CERCLA with the debtor, Johns-Man- ville, for costs expended by the EPA to clean up a hazardous waste site. Thereafter, the EPA and Boston & Marine brought separate adversary proceedings against Johns-Manville in the bankruptcy court seeking a determination of whether and when their respective claims arose. In connection with the plaintiffs’ motions for withdrawal, Judge Leval observed that “CERCLA is a statute ‘rooted in the commerce clause’ and is precisely ‘the type of law[ ] Congress had in mind when it enacted the statutory withdrawal provision.' ” In re Johns-Manville, 63 B.R. at 602 (citing United States v. ILCO, Inc., 48 B.R. 1016, 1021 (N.D.Ala.1985) (withdrawing government’s CERCLA cause of action in accordance with § 157(d))). Finding that the adversary proceedings raised questions that required “significant interpretation of the CERCLA statute ... [and] assessment of the relationship of such CERCLA claims to ... the Bankruptcy Code,” the Court held: It ... seems quite clear that this controversy falls within the category of cases mandatorily withdrawn from the Bankruptcy court’s jurisdiction by § 157(d), in that it “requires consideration of both title 11 and other laws of the United States regulating ... interstate commerce.” In re Johns-Manville Corp., 63 B.R. at 603 (citing Maislin Indus. v. C.J. Van Houten E Zoon Inc., 50 B.R. 943, 948 (E.D.Mich.1985)). The Court rejected the debtor’s assertion that a CERCLA claim for contribution involved" }, { "docid": "20918156", "title": "", "text": "is no dispute that resolution of the proceeding in question will require consideration of both bankruptcy and non-bankruptcy, more specifically CERCLA, laws, it is equally clear that such consideration of CERCLA will not rise to the level required for mandatory withdrawal. There is nothing in the record to indicate that there exists any potential conflicts between the Code and CERCLA nor has the movant shown that the adversary proceeding will require “substantial and material” consideration of both bankruptcy and non-bankruptcy laws. As stated earlier, the mere fact that the bankruptcy judge is forced to determine issues outside the scope of bankruptcy laws is insufficient to mandate withdrawal until and unless the movant can demonstrate that such issues are one of first impression or that there is a conflict between the Code and non-Code cases. This, Norton has failed to do. It is here noted that Norton primarily relies on two cases in support of its position: New York v. Exxon Corp., 932 F.2d 1020 (2d Cir.1991) and In re Revere Copper and Brass, Inc., 169 B.R. 87 (S.D.N.Y.1994). Such reliance is misplaced, however. As to the Exxon case, reliance is misplaced since the issue of mandatory withdrawal is discussed only in dicta. 932 F.2d at 1026 (“We note further that the litigation of the City’s CERCLA claim in the California bankruptcy proceeding could well result in a withdrawal of the bankruptcy reference if the City’s claim should require substantial interpretation of CERCLA.”) (emphasis added). Concomitantly, reliance on In re Revere Copper and Brass is misplaced since that decision was vacated on September 12, 1994. The Court further notes that this decision may be somewhat at odds with the court’s decision in In re Horizon Air, Inc., 156 B.R. 369 (N.D.N.Y.1993) (Munson, S.J.). However, it is the opinion of this court that today’s decision better comports with the spirit of Section 157(d) and, furthermore, is better grounded in the law of this circuit. For the stated reasons, Norton’s motion for mandatory withdrawal of reference of adversary proceeding no. 94-91113 is denied. This denial renders the debtor’s argument that the motion was" }, { "docid": "22477931", "title": "", "text": "(“DOI”). Pursuant to CERCLA, the United States’ Proof of Claim lists seven sites nationwide at which it alleges the Debtors generated or disposed of hazardous substances (“Listed Sites”). In addition, the United States reserves its right to assert that the Debtors are liable under CERCLA with respect to at least thirteen unlisted sites based on pre-petition conduct (“Unlisted Sites”). For a detailed discussion of the Proof of Claim, and United States’ Listed and Unlisted Sites, refer to Section III, infra. On August 2,1991 the Debtors filed with the bankruptcy court an Objection to the Proof of Claim, a Motion to Estimate the United States’ Claim and a Motion to Classify the United States' Claim. Debtors’ motions raised a number of significant legal issues regarding the intersection of the Code and CERCLA. On August 16, 1991 the United States filed a Motion for Withdrawal of Reference. On September 13, 1991 this Court granted the United States’ Motion, withdrawing from bankruptcy court all matters pertaining to the Proof of Claim, and all Debtors’ responses to such claim. See September 13, 1991 Memorandum Opinion and Order. 134 B.R. 188. The Court found that disposition of the Proof of Claim implicated the category of cases that requires substantial and material consideration of non-bankruptcy federal statutes, and warrants mandatory withdrawal of reference pursuant to 28 U.S.C. § 157(d). See id. Once reference was withdrawn, the United States and the Debtors agreed on a schedule for the briefing of significant and controlling legal issues raised by the Proof of Claim, and more specifically, by the interaction of the Code and CERCLA. These legal issues are embodied in the two sets of motions before the Court: The United States’ Motion for Legal Determination of Issues Raised in the Debtors’ Objection, Motions and/or Counterclaims, and the Debtors’ Motion for Summary Judgment Concerning Discharge of any Environmental Liability for Sites not Listed in the United States’ Proof of Claim. Beyond setting a schedule for the briefing of the two sets of motions, the parties were unable to agree on a stipulated schedule for discovery and trial. As a result," }, { "docid": "22477971", "title": "", "text": "occasion to examine this case law but instead endorsed this development, and added two provisions to mitigate the possible inequities of joint and several liability. See O’Neil, 883 F.2d at 179. First, the [SARA] Amendments direct the EPA to offer early settlements to defendants who the Agency believes are responsible for only a small portion of the harm, so called de minimis settlements. See [CERCLA] § 122(g). Second, the Amendments provide for a statutory cause of action in contribution, co difying what most courts had concluded was implicit in the 1980 Act. See [CERC-HA] § 113(f)(1). Under this section, courts “may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Id. In sum, subject to a finding of divisibility, Debtors’ liability at the Listed Sites will be estimated on the basis of joint and several liability. V. Renewed Reference to Bankruptcy Court On September 13, 1991 the Court withdrew reference from bankruptcy court of all matters pertaining to the United States’ Proof of Claim, and all Debtors’ responses to such claim. The Court found that disposition of these matters implicated substantial and material consideration of non-bankruptcy federal statutes, and warranted mandatory withdrawal of reference pursuant to 28 U.S.C. § 157(d). The legal issues addressed in this Order dispose of the material matters at the heart of the intersection between the Code and CERCLA which had prompted the withdrawal of reference. At this time, the Court is of the opinion that this case should be referred to bankruptcy court pursuant to 28 U.S.C. § 157(a). Bankruptcy courts provide the expertise and efficiency intended by Congress in adjudication of core bankruptcy matters. See In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984). Withdrawal of reference is no longer warranted where it is a question of “straight forward application of a federal statute to a particular set of facts.” In re Johns-Manville Corp., 63 B.R. 600, 602 (S.D.N.Y.1986). VI. Conclusion The Court has made the following determinations: 1.All future response and natural resource damages costs based on pre-petition conduct, fairly within contemplation of the" } ]